Common use of California Waivers Clause in Contracts

California Waivers. (a) Each Subsidiary Guarantor's liability hereunder is a guaranty of payment and performance and is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of any of the provisions of the Loan Documents, and each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits under the California Code of Civil Procedure ("CC") Section 2810 and agrees that by doing so such Subsidiary Guarantor is liable even if Borrower had no liability at the time of execution of the Loan Documents or thereafter ceases to be liable. Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits under CC Section 2809 and agrees that each Subsidiary Guarantor's obligations under this Guaranty are independent of the obligations of Borrower. Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits such Subsidiary Guarantor may now or hereafter have, under CC Section 2815 or otherwise, to revoke this guaranty. Each Subsidiary Guarantor further hereby waives any and all rights, defenses and benefits that such Subsidiary Guarantor may now or hereafter have, under CC Section 2819, 2825 or otherwise, arising out of any release or discharge of Borrower, in whole or in part, from Borrower's liabilities and/or obligations under the Loan Documents. (b) Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits under CC Section 2845, 2849 and 2850, including, without limitation, the right to require Lender to (a) proceed against any other guarantor, (b) proceed against or exhaust any security or collateral Lender may hold, or (c) pursue any other right or remedy for such Subsidiary Guarantor's benefit, and agrees that Lender may proceed against each Subsidiary Guarantor for the Guaranteed Obligations without taking any action against any other guarantor and without proceeding against or exhausting any security or collateral Lender holds. Each Subsidiary Guarantor agrees that Lender may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against any other guarantor without impairing Lender's rights and remedies in enforcing this guaranty, under which each Subsidiary Guarantor's liabilities shall remain independent and unconditional. Each Subsidiary Guarantor agrees that Lender's exercise of certain of such rights or remedies may affect or eliminate such Subsidiary Guarantor's right of subrogation or recovery against Borrower and that each Subsidiary Guarantor may incur a partially or totally nonreimbursable liability under this guaranty. (c) Each Subsidiary Guarantor hereby waives all rights, defenses and benefits under CC Sections 2847, 2848 and 2849 and agrees that it shall have no right of subrogation or reimbursement against Borrower, and no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor. To the extent each Subsidiary Guarantor's waiver of these rights of subrogation, reimbursement or contribution as set forth herein are found by a court of competent jurisdiction to be void or voidable for any reason, each Subsidiary Guarantor agrees that its rights of subrogation and reimbursement against Borrower and such Subsidiary Guarantor's right of subrogation against any collateral or security shall be junior and subordinate to Lender's rights against Borrower and to Lender's right, title and interest in such collateral or security, and each Subsidiary Guarantor's right of contribution against any other guarantor shall be junior and subordinate to Lender's rights against such other guarantor. (d) Without limitation, each Subsidiary Guarantor hereby waives any and all of its rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to each Subsidiary Guarantor by reason of any of the following: Sections 2787 through 2855 of the California Civil Code. Without limitation, each Subsidiary Guarantor waives all rights and defenses that such Subsidiary Guarantor may have because the Borrower's debt to Lender is secured by real property. This means, among other things: (i) Lender may collect from each Subsidiary Guarantor without first foreclosing on any real or personal property collateral pledged by the Borrower; and (ii) If Lender forecloses on any real property collateral pledged by Borrower: (A) the amount of the debt of Borrower to Lender 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) Lender may collect from each Subsidiary Guarantor even if Lender, by foreclosing on the real property collateral, has destroyed any right any Subsidiary Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses each Subsidiary Guarantor may have because the Borrower's debt to Lender 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 Code of Civil Procedure.

California Waivers. Each Credit Party hereby: (a) Each Subsidiary Guarantor's liability hereunder is a guaranty of payment and performance and is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of any of the provisions of the Loan Documents, and each Subsidiary Guarantor hereby expressly waives any and all rightsbenefits which might otherwise be available to such Credit Party under California Civil Code Sections 2809, 2810, 2819, 2839, 2845 through 2847, 2849, 2850, 2899 and 3433, and California Code of Civil Procedure Sections 580a, 580b, 580d and 726; (b) acknowledges its understanding that: (i) Section 580d of the California Code of Civil Procedure generally prohibits a deficiency judgment against a borrower after a non-judicial foreclosure; (ii) such Credit Party’s subrogation rights may be destroyed by a non-judicial foreclosure under any mortgage (because such Credit Party may not be able to pursue any other Credit Party for a deficiency judgment by reason of the application of Section 580d of the California Code of Civil Procedure); and (iii) under Union Bank x. Xxxxxxx, 265 Cal. App. 2nd 40 (1968) and Cathay Bank x. Xxx, 14 Cal.App.4th 1533 (1993), a lender may be estopped from pursuing a guarantor for a deficiency judgment after a non-judicial foreclosure (on the theory that a guarantor should be exonerated if a lender materially alters the original obligation of the principal without the consent of the guarantor or elects remedies for default which impair the subrogation, reimbursement or contribution rights of a “surety” or other co-obligor) absent an explicit waiver; (c) expressly waives all rights and defenses arising out of an election of remedies by the Agent or the Lenders, including without limitation, any defense that might otherwise be available under Gradsky and benefits under Cathay Bank, supra, or Section 580d of the California Code of Civil Procedure ("CC") Section 2810 and agrees or any similar judicial decision or statute), even though that by doing so election of remedies, such Subsidiary Guarantor is liable even if Borrower had no liability at as a nonjudicial foreclosure with respect to the time of execution of the Loan Documents or thereafter ceases to be liable. Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits under CC Section 2809 and agrees that each Subsidiary Guarantor's obligations under this Guaranty are independent of the obligations of Borrower. Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits such Subsidiary Guarantor may now or hereafter have, under CC Section 2815 or otherwise, to revoke this guaranty. Each Subsidiary Guarantor further hereby waives any and all rights, defenses and benefits that such Subsidiary Guarantor may now or hereafter have, under CC Section 2819, 2825 or otherwise, arising out of any release or discharge of Borrower, in whole or in part, from Borrower's liabilities and/or obligations under the Loan Documents. (b) Each Subsidiary Guarantor hereby waives any and all rights, defenses and benefits under CC Section 2845, 2849 and 2850, including, without limitation, the right to require Lender to (a) proceed against any other guarantor, (b) proceed against or exhaust any security or collateral Lender may hold, or (c) pursue any other right or remedy for such Subsidiary Guarantor's benefit, and agrees that Lender may proceed against each Subsidiary Guarantor for the Guaranteed Obligations without taking any action against any other guarantor and without proceeding against or exhausting any security or collateral Lender holds. Each Subsidiary Guarantor agrees that Lender may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against any other guarantor without impairing Lender's rights and remedies in enforcing this guarantyObligations, under which each Subsidiary Guarantor's liabilities shall remain independent and unconditional. Each Subsidiary Guarantor agrees that Lender's exercise of certain of has destroyed such rights or remedies may affect or eliminate such Subsidiary Guarantor's right of subrogation or recovery against Borrower and that each Subsidiary Guarantor may incur a partially or totally nonreimbursable liability under this guaranty. (c) Each Subsidiary Guarantor hereby waives all rights, defenses and benefits under CC Sections 2847, 2848 and 2849 and agrees that it shall have no right of subrogation or reimbursement against Borrower, and no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor. To the extent each Subsidiary Guarantor's waiver of these rights of subrogation, reimbursement or contribution as set forth herein are found by a court of competent jurisdiction to be void or voidable for any reason, each Subsidiary Guarantor agrees that its Credit Party’s rights of subrogation and reimbursement against Borrower and such Subsidiary Guarantor's right of subrogation against any collateral or security shall be junior and subordinate to Lender's rights against Borrower and to Lender's right, title and interest in such collateral or security, and each Subsidiary Guarantor's right of contribution against any other guarantor shall be junior and subordinate to Lender's rights against such other guarantor.Credit Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (d) Without limitation, each Subsidiary Guarantor hereby waives any and all of its rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses acknowledges that are or may become available the provisions in this Section 9.12 which refer to each Subsidiary Guarantor by reason of any of the following: Sections 2787 through 2855 certain sections of the California Civil Code. Without limitation, each Subsidiary Guarantor waives all rights Code and defenses that such Subsidiary Guarantor may have because the Borrower's debt to Lender is secured by real property. This means, among other things: (i) Lender may collect from each Subsidiary Guarantor without first foreclosing on any real or personal property collateral pledged by the Borrower; and (ii) If Lender forecloses on any real property collateral pledged by Borrower: (A) the amount of the debt of Borrower to Lender 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) Lender may collect from each Subsidiary Guarantor even if Lender, by foreclosing on the real property collateral, has destroyed any right any Subsidiary Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses each Subsidiary Guarantor may have because the Borrower's debt to Lender 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 ProcedureProcedure are included in this Agreement solely out of an abundance of caution and shall not be construed to mean that any of the above referenced provisions of California law are in any way applicable to this Agreement: notwithstanding such provisions, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, as provided in Section 9.09.

California Waivers. In addition to, and not in lieu of, the waivers set forth in this Guaranty, Guarantor represents, warrants, covenants and agrees as follows: (a) Each Subsidiary Guarantor's liability hereunder is a guaranty The obligations of payment Guarantor under this Guaranty shall be performed without demand by Lender and performance and is not conditioned or contingent upon shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the provisions of the Loan Documents, and each Subsidiary without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Guarantor hereby waives any and all rights, benefits and defenses and benefits under the California Civil Code of Civil Procedure ("CC") Section 2810 and agrees that by doing so such Subsidiary Guarantor is shall be liable even if Borrower had no liability at the time of execution of the Loan Documents Documents, or thereafter ceases to be liable. Each Subsidiary Guarantor hereby waives any and all rights, benefits and defenses and benefits under CC California Civil Code Section 2809 and agrees that each Subsidiary by doing so Guarantor's liability may be larger in amount and more burdensome than that of Borrower. Guarantor 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 Guaranty and agrees that Guarantor's obligations under shall not be affected by any circumstances, whether or not referred to in this Guaranty are independent Guaranty, which might otherwise constitute a legal or equitable discharge of the obligations of Borrowera surety or a guarantor. Each Subsidiary Guarantor hereby waives the benefits of any right of discharge under any and all rightsstatutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder. Without limiting the generality of the foregoing, defenses and benefits such Subsidiary Guarantor may now or hereafter have, under CC Section 2815 or otherwisehereby waives, to revoke the fullest extent permitted by law, diligence in collecting the Guaranteed Debt, presentment, demand for payment, protest, all notices with respect to the Note, this guaranty. Each Subsidiary Guaranty, or any other Loan Document which may be required by statute, rule of law or otherwise to preserve Lender's rights against Guarantor further hereby waives any and all rightsunder this Guaranty, defenses and benefits that such Subsidiary Guarantor may now or hereafter haveincluding, under CC Section 2819but not limited to, 2825 or otherwisenotice of acceptance, arising out notice of any release or discharge amendment of Borrower, in whole or in part, from Borrower's liabilities and/or obligations under the Loan Documents. (b) Each Subsidiary , 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 Borrower of any obligation or indebtedness. Guarantor hereby waives any and also waives, to the fullest extent permitted by law, all rights, defenses and benefits under CC Section 2845, 2849 and 2850, including, without limitation, the right rights to require Lender to (a) proceed against Borrower or any other guarantorguarantor of Borrower's payment or performance with respect to the Guaranteed Debt (an "Other Guarantor"), (b) if Borrower or any Other Guarantor is a partnership, proceed against any general partner of Borrower or the Other Guarantor, (c) proceed against or exhaust any security or collateral held by Lender may holdto secure the repayment of the Guaranteed Debt, or (cd) pursue any other right remedy it may now or remedy for such Subsidiary Guarantor's benefithereafter have against Borrower or (if Borrower is a partnership) any general partner of Borrower, including any and agrees all benefits under California Civil Code Sections 2845, 2849 and 2850. (b) Guarantor understands that the exercise by Lender may proceed against each Subsidiary Guarantor for the Guaranteed Obligations without taking any action against any other guarantor and without proceeding against or exhausting any security or collateral Lender holds. Each Subsidiary Guarantor agrees that Lender may unqualifiedly exercise in its sole discretion any or all of certain rights and remedies available to it against any other guarantor without impairing Lender's rights and remedies contained in enforcing this guaranty, under which each Subsidiary Guarantor's liabilities shall remain independent and unconditional. Each Subsidiary Guarantor agrees that Lender's exercise of certain of such rights or remedies the Lien Instrument(such as a nonjudicial foreclosure sale) may affect or eliminate such Subsidiary Guarantor's right of subrogation or recovery against Borrower and that each Subsidiary Guarantor may therefore incur a partially or totally nonreimbursable liability under this guaranty. (c) Each Subsidiary Guaranty. Nevertheless, Guarantor hereby waives all rightsauthorizes and empowers Lender to exercise, defenses in its sole and benefits absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations under CC Sections 2847, 2848 and 2849 and agrees that it shall have no right of subrogation or reimbursement against Borrower, and no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor. To the extent each Subsidiary Guarantor's waiver of these rights of subrogation, reimbursement or contribution as set forth herein are found by a court of competent jurisdiction to be void or voidable for any reason, each Subsidiary Guarantor agrees that its rights of subrogation and reimbursement against Borrower and such Subsidiary Guarantor's right of subrogation against any collateral or security this Guaranty shall be junior absolute, independent and subordinate unconditional under any and all circumstances. Guarantor expressly waives any defense (which defense, if Guarantor had not given this waiver, Guarantor might otherwise have) to Lender's rights a judgment against Borrower and to Lender's rightGuarantor by reason of a nonjudicial foreclosure. Without limiting the generality of the foregoing, title and interest in such collateral or security, and each Subsidiary Guarantor's right of contribution against any other guarantor shall be junior and subordinate to Lender's rights against such other guarantor. (d) Without limitation, each Subsidiary Guarantor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if Guarantor had not given this waiver, would otherwise limit Guarantor's liability after a nonjudicial foreclosure sale to the difference between the obligations of Guarantor under this Guaranty and the fair market value of the property or interests sold at LIMITED RECOURSE GUARANTY – PAGE 10 such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if Guarantor had not given this waiver, would otherwise limit Lender'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 Guarantor had not given this waiver, among other things, would otherwise require Lender to exhaust all of its rights of subrogation, reimbursement, indemnification, and contribution and security before a personal judgment could be obtained for a deficiency). Notwithstanding any other rights and defenses that are or may become available to each Subsidiary Guarantor by reason of any foreclosure of the following: Sections 2787 through 2855 lien of the Mortgage, whether by the exercise of the power of sale contained in the Mortgage, by an action for judicial foreclosure or by Lender's acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound under this Guaranty. In accordance with Section 2856 of the California Civil Code. Without limitation, each Subsidiary Guarantor waives all rights and defenses that such Subsidiary Guarantor may have because the Borrower's debt to Lender is obligations are secured by real property. This means, among other things: (i) Lender may collect from each Subsidiary Guarantor without first foreclosing on any real or personal property collateral pledged by the BorrowerBorrower or others; and (ii) If Lender forecloses on any real property collateral pledged by Borrower: Borrower or others, then (Ai) the amount of the debt of Borrower to Lender 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 price and (Bii) Lender may collect from each Subsidiary Guarantor even if Lender, by foreclosing on the real property collateral, has destroyed any right any Subsidiary Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses each Subsidiary that Guarantor may have because the Borrower's debt to Lender is obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section California Code of Civil Procedure Sections 580a, 580b, 580d, or 726. (c) In accordance with Section 2856 of the California Civil Code, Guarantor also waives any right or defense based upon an election of remedies by Lender, even though such election (e.g., nonjudicial foreclosure with respect to any collateral held by Lender to secure repayment of the Guaranteed Debt) destroys or otherwise impairs the subrogation rights of Guarantor or the right of Guarantor (after payment of the obligations guaranteed by Guarantor under this Guaranty) to proceed against Borrower for reimbursement, or both, by operation of Section 580d or 726 of the Code of Civil Procedure or otherwise. (d) In accordance with Section 2856 of the California Civil Code, Guarantor waives any and all other rights and defenses available to Guarantor by reason of Sections 2787 through 2855, inclusive, of the California Civil Code, including any and all rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to any of the obligations of Guarantor under this Guaranty pursuant to the antideficiency or other laws of the State of California limiting or discharging Borrower's obligations or indebtedness, including Sections 580a, 580b, 580d, and 726 of the California Code of Civil Procedure. Similarly, Guarantor waives any and all rights and defenses available to Guarantor under California Civil Code Sections 2899 and 3433. (e) Guarantor shall have no right of, and hereby waives any claim for, subrogation, reimbursement, indemnification, and contribution against Borrower and against any general partner, member or other constituent of Borrower, and against any other person or any collateral or security for the Guaranteed Debt (including without limitation any such rights pursuant to Sections 2847 and 2848 of the California Civil Code), until the Guaranteed Debt has been indefeasibly paid and satisfied in full, all obligations owed to Lender under the Loan Documents have been fully performed, and Lender has released, transferred or disposed of all of 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 Borrower or others to Lender with respect to the Guaranteed Debt could be deemed a preference under any insolvency, bankruptcy, reorganization, receivership or other debtor relief law.