Common use of Principals’ General Waivers Clause in Contracts

Principals’ General Waivers. Each Principal waives: (a) any defense now existing or hereafter arising based upon any legal disability or other defense of Operating Partnership, Borrower, Principal or any other Principal or other Person, or by reason of the cessation or limitation of the liability of Borrower, Principal or any other Principal or other Person from any cause other than full payment and performance of all obligations due under the Loan Documents; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of the Operating Partnership, Borrower or any other Person, or any defect in the formation of Operating Partnership, Borrower or any other Person; (c) the unenforceability or invalidity of any security or guarantee or the lack of perfection or continuing perfection, or failure of priority of any security for the obligations guarantied hereunder; (d) any and all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Principal’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any defense based upon Lender’s failure to disclose to Principal any information concerning Operating Partnership’s, Borrower’s or any other Person’s financial condition or any other circumstances bearing on Operating Partnership’s, Borrower’s or any other Person’s ability to pay and perform all obligations due under the Loan Documents; (f) any failure by Lender to give notice to Operating Partnership, Borrower, Principal or any other Person of the sale or other disposition of security held for the Loan, and any defect in notice given by Lender in connection with any such sale or disposition of security held for the Loan; (g) any failure of Lender to comply with applicable laws in connection with the sale or disposition of security held for the Loan, including, without limitation, any failure by Lender to conduct a commercially reasonable sale or other disposition of such security; (h) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or Principal’s obligations in proportion to the principal’s obligation; (i) any use of cash collateral under Section 363 of the Federal Bankruptcy Code; (j) any defense based upon Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (k) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (l) relief from any applicable valuation or appraisement laws; and (r) any defense based upon the application by Borrower of the proceeds of the Loan for purposes other than the purposes represented by Borrower to Lender or intended or understood by Lender or Principal. Each Principal agrees that the payment and performance of all obligations due under the Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Loan Documents shall similarly operate to toll the statute of limitations applicable to such Principal’s liability hereunder. Without limiting the generality of the foregoing or any other provision hereof, each Principal further waives any and all rights and defenses that such Principal may have because Borrower’s debt is secured by real property; this means, among other things, that: if Lender forecloses on any real property collateral pledged by Borrower, then (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) Principal shall have the obligation to contribute hereunder even if Lender, by foreclosing on the real property collateral, has destroyed any subrogation right of Principal against Borrower, the Operating Partnership or the General Partner of the Operating Partnership. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses each Principal may have because Borrower’s debt is secured by real property. Without limiting the generality of the foregoing or any other provision hereof, each Principal expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to such Principal under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and under California Code of Civil Procedure Sections 580a, 580b, 580d and 726 (or any of such sections), or any other jurisdiction to the extent the same are applicable to this Agreement or the agreements, covenants or obligations of such Principal hereunder.

Principals’ General Waivers. Each With respect to its obligations hereunder as they relate to each respective Contribution Agreement, each Principal waives: (a) any defense now existing or hereafter arising based upon any legal disability or other defense of MTP-CSII, Operating Partnership, any Borrower, Principal or any other Principal or other Person, or by reason of the cessation or limitation of the liability of Borrower, Principal or any other Principal Borrower or other Person from any cause other than full payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of MTP-CSII, the Operating Partnership, any Borrower or any other Person, or any defect in the formation of Operating PartnershipMTP-CSII, Borrower or any other Person; (c) the unenforceability or invalidity of any security or guarantee or the lack of perfection or continuing perfection, or failure of priority of any security for the obligations guarantied hereunder; (d) any and all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Principal’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any defense based upon any Lender’s failure to disclose to Principal any information concerning MTP-CSII’s, the Operating Partnership’s, any Borrower’s or any other Person’s financial condition or any other circumstances bearing on MTP-CSII’s, the Operating Partnership’s, any Borrower’s or any other Person’s ability to pay and perform all obligations due under any respective Loan Agreement or any of the other Loan Documents; (fe) any failure by any Lender to give notice to MTP-CSII, the Operating Partnership, any Borrower, Principal or any other Person of the sale or other disposition of security held for the Loan, and any defect in notice given by any Lender in connection with any such sale or disposition of security held for the any Loan; (gf) any failure of any Lender to comply with applicable laws in connection with the sale or disposition of security held for the Loan, including, without limitation, any failure by any Lender to conduct a commercially reasonable sale or other disposition of such security; (hg) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or Principal’s obligations in proportion to the principal’s obligation; (ih) any use of cash collateral under Section 363 of the Federal Bankruptcy Code; (ji) any defense based upon any Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (kj) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (lk) relief from any applicable valuation or appraisement laws; and (rl) any defense based upon the application by any Borrower of the proceeds of the any Loan for purposes other than the purposes represented by such Borrower to its Lender or intended or understood by Lender such lender or Principal. Each Principal agrees that the payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to such Loan Agreement or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to such Principal’s liability hereunder. Without limiting the generality of the foregoing or any other provision hereof, each Principal further waives any and all rights and defenses that such Principal may have because a Borrower’s debt is secured by real property; this means, among other things, that: if any Lender forecloses on any real property collateral pledged by any Borrower, then (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) such Principal shall have the obligation to contribute hereunder to MTP-CSII even if Lender, by foreclosing on the real property collateral, has destroyed any subrogation right of Principal the Operating Partnership against Borrower, the Borrower or of MTP-CSII against the Operating Partnership or the General Partner of the Operating Partnership. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses each Principal may have because any such Borrower’s debt is secured by real property. Without limiting the generality of the foregoing or any other provision hereof, each Principal expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to such Principal under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and under California Code of Civil Procedure Sections 580a, 580b, 580d and 726 (or any of such sections), or any other jurisdiction to the extent the same are applicable to this Agreement or the agreements, covenants or obligations of such Principal hereunder.

Principals’ General Waivers. Each With respect to its obligations hereunder as they relate to each respective Contribution Agreement, each Principal waives: (a) any defense now existing or hereafter arising based upon any legal disability or other defense of TMI, the Operating Partnership, any Borrower, Principal or any other Principal or other Person, or by reason of the cessation or limitation of the liability of Borrower, Principal or any other Principal Borrower or other Person from any cause other than full payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of TMI, the Operating Partnership, any Borrower or any other Person, or any defect in the formation of Operating PartnershipTMI, Borrower or any other Person; (c) the unenforceability or invalidity of any security or guarantee or the lack of perfection or continuing perfection, or failure of priority of any security for the obligations guarantied hereunder; (d) any and all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Principal’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any defense based upon any Lender’s failure to disclose to Principal any information concerning TMI’s, the Operating Partnership’s, any Borrower’s or any other Person’s financial condition or any other circumstances bearing on TMI’s, the Operating Partnership’s, any Borrower’s or any other Person’s ability to pay and perform all obligations due under any respective Loan Agreement or any of the other Loan Documents; (fe) any failure by any Lender to give notice to TMI, the Operating Partnership, any Borrower, Principal or any other Person of the sale or other disposition of security held for the Loan, and any defect in notice given by any Lender in connection with any such sale or disposition of security held for the any Loan; (gf) any failure of any Lender to comply with applicable laws in connection with the sale or disposition of security held for the Loan, including, without limitation, any failure by any Lender to conduct a commercially reasonable sale or other disposition of such security; (hg) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or Principal’s obligations in proportion to the principal’s obligation; (ih) any use of cash collateral under Section 363 of the Federal Bankruptcy Code; (ji) any defense based upon any Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (kj) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (lk) relief from any applicable valuation or appraisement laws; and (rl) any defense based upon the application by any Borrower of the proceeds of the any Loan for purposes other than the purposes represented by such Borrower to its Lender or intended or understood by such Lender or Principal. Each Principal agrees that the payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to such Loan Agreement or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to such Principal’s liability hereunder. Without limiting the generality of the foregoing or any other provision hereof, each Principal further waives any and all rights and defenses that such Principal may have because a Borrower’s debt is secured by real property; this means, among other things, that: if any Lender forecloses on any real property collateral pledged by any Borrower, then (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) such Principal shall have the obligation to contribute hereunder to TMI even if Lender, by foreclosing on the real property collateral, has destroyed any subrogation right of Principal the Operating Partnership against Borrower, the Borrower or of TMI against the Operating Partnership or the General Partner of the Operating Partnership. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses each Principal may have because any such Borrower’s debt is secured by real property. Without limiting the generality of the foregoing or any other provision hereof, each Principal expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to such Principal under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and under California Code of Civil Procedure Sections 580a, 580b, 580d and 726 (or any of such sections), or any other jurisdiction to the extent the same are applicable to this Agreement or the agreements, covenants or obligations of such Principal hereunder.

Principals’ General Waivers. Each With respect to its obligations hereunder as they relate to each respective Contribution Agreement, each Principal waives: (a) any defense now existing or hereafter arising based upon any legal disability or other defense of MTP-Philadelphia, the Operating Partnership, any Borrower, Principal or any other Principal or other Person, or by reason of the cessation or limitation of the liability of Borrower, Principal or any other Principal Borrower or other Person from any cause other than full payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of MTP-Philadelphia, the Operating Partnership, any Borrower or any other Person, or any defect in the formation of Operating PartnershipMTP-Philadelphia, Borrower or any other Person; (c) the unenforceability or invalidity of any security or guarantee or the lack of perfection or continuing perfection, or failure of priority of any security for the obligations guarantied hereunder; (d) any and all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Principal’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any defense based upon any Lender’s failure to disclose to Principal any information concerning MTP-Philadelphia’s, the Operating Partnership’s, any Borrower’s or any other Person’s financial condition or any other circumstances bearing on MTP-Philadelphia’s, the Operating Partnership’s, any Borrower’s or any other Person’s ability to pay and perform all obligations due under any respective Loan Agreement or any of the other Loan Documents; (fe) any failure by any Lender to give notice to MTP-Philadelphia, the Operating Partnership, any Borrower, Principal or any other Person of the sale or other disposition of security held for the Loan, and any defect in notice given by any Lender in connection with any such sale or disposition of security held for the any Loan; (gf) any failure of any Lender to comply with applicable laws in connection with the sale or disposition of security held for the Loan, including, without limitation, any failure by any Lender to conduct a commercially reasonable sale or other disposition of such security; (hg) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or Principal’s obligations in proportion to the principal’s obligation; (ih) any use of cash collateral under Section 363 of the Federal Bankruptcy Code; (ji) any defense based upon any Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (kj) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (lk) relief from any applicable valuation or appraisement laws; and and (r1) any defense based upon the application by any Borrower of the proceeds of the any Loan for purposes other than the purposes represented by such Borrower to its Lender or intended or understood by such Lender or Principal. Each Principal agrees that the payment and performance of all obligations due under any Loan Agreement or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to such Loan Agreement or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to such Principal’s liability hereunder. Without limiting the generality of the foregoing or any other provision hereof, each Principal further waives any and all rights and defenses that such Principal may have because a Borrower’s debt is secured by real property; this means, among other things, that: if any Lender forecloses on any real property collateral pledged by any Borrower, then (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) such Principal shall have the obligation to contribute hereunder to MTP-Philadelphia even if Lender, by foreclosing on the real property collateral, has destroyed any subrogation right of Principal the Operating Partnership against Borrower, the Borrower or of MTP-Philadelphia against the Operating Partnership or the General Partner of the Operating Partnership. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses each Principal may have because any such Borrower’s debt is secured by real property. Without limiting the generality of the foregoing or any other provision hereof, each Principal expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to such Principal under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and under California Code of Civil Procedure Sections 580a, 580b, 580d and 726 (or any of such sections), or any other jurisdiction to the extent the same are applicable to this Agreement or the agreements, covenants or obligations of such Principal hereunder.