Common use of Special State Provisions Clause in Contracts

Special State Provisions. Guarantor hereby acknowledges and agrees that (1) this Guaranty is not secured by the Security Instrument or by any real property in the State of California, and (2) this Guaranty is not governed by or subject to the laws of the State of California, and the following waivers and other terms and conditions of this Guaranty are given by Guarantor out of an abundance of caution at the request of Lender (and that the same forms a material part of the consideration for Lender to make the Loan) in the event the Loan is ever characterized as being governed by the laws of the State of California or this Guaranty is subject to interpretation under the laws of the State of California (but that it is not Lender’s or Guarantor’s intention to so characterize the Loan). Subject to the foregoing: (a) Guarantor hereby expressly waives any and all benefits and defenses under California Civil Code (“CC”), Section 2787-2855, inclusive, and 2899, 2953 and 3433, including, without limitation, the right to require Lender to (i) proceed against Borrower or any Guarantor or other pledgor, (ii) proceed against or exhaust any security or collateral Lender may hold, or (iii) pursue any other right or remedy for the benefit of Guarantor. Guarantor hereby expressly waives any and all benefits and defenses under (A) California Code of Civil Procedure (“CCP”) Section 580a which would otherwise limit Guarantor’s liability after a non-judicial foreclosure sale to the difference between the obligations guaranteed herein and the value of the property or interest sold at such non-judicial foreclosure sale as determined by a fair value hearing or otherwise, (B) CCP Sections 580b and 580d, which would otherwise limit Lender’s, right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial foreclosure sale, respectively, and (C) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained or a deficiency judgment may be pursued and would limit Guarantor’s liability after a judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair value of the property or interest sold at such judicial foreclosure sale. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, and notwithstanding enforcement of any other guaranty executed in connection with the Loan Documents, Guarantor shall remain bound under this Guaranty. Guarantor acknowledges that it has been made aware of the provisions of CC Section 2856, has read and understands the provisions of that statute, has had the opportunity to seek the advice of its counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive all suretyship rights and defenses described in CC Section 2856(a). (b) Without limiting any other waivers herein, Guarantor hereby gives the following waivers with respect to CC Sections 2856(c) and (d): (i) Guarantor waives all rights and defenses that the Guarantor may have because the debtor’s debt is secured by real property. This means among other things: (A) the creditor may collect from the Guarantor without first foreclosing on any real or personal property pledged by the debtor; (B) if the creditor forecloses on any real property collateral pledged by the debtor: (1) 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; (2) the creditor may collect from the Guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based on Sections 580a, 580b, 580d or 726 of the Code of Civil Procedure. (ii) Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise. (c) To the full extent permitted by law, Guarantor waives any and all statutes of limitations as a defense to any or all of the Guaranteed Obligations. (d) Guarantor waives any and all provisions of law and equitable principles that conflict with this Guaranty. (e) Guarantor waives any right to require Lender and Lender shall not have any obligation, to provide to Guarantor any information concerning performance of the Obligations, the ability of Borrower to perform the Obligations, or any other matter, regardless of what information Lender may have from time to time. (f) Until such time as the Debt has been fully and finally paid, performed and discharged and Guarantor shall have paid and performed all of its obligations under this Guaranty, Guarantor waives any and all present and future claims, remedies, and rights of Guarantor against Borrower, any Guarantor, the collateral, and any other property, interests in property, or rights to property of Borrower or any Guarantor (i) arising from any performance by Guarantor hereunder, (ii) arising from any application of any collateral or any other property, interests in property, or rights to property of Guarantor to payment or performance of the Guaranteed Obligations, or (iii) otherwise arising in respect of the Loan Documents, regardless of whether such claims, remedies, and rights arise under any present or future agreement, document, or instrument or are provided by any law, ordinance, regulation, or rule (federal, state, or local) (including, without limitation, (A) any and all rights of contribution, exoneration, indemnity, reimbursement, and subrogation, and (B) any and all rights to participate in the rights and remedies of Lender against Borrower, any Guarantor, and the collateral). Guarantor understands and acknowledges that Guarantor may, by reason of the foregoing waivers, incur a partially or totally non-reimbursable liability hereunder, nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in its sole discretion, any right and remedies or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. For example, but without limiting the generality of the foregoing, under California law (CCP Section 580d as interpreted in Union Bank x. Xxxxxxx, 265 Cal. App. 2d 40 (1968) which was decided prior to the enactment of CCP Section 2856) Guarantor could attempt to assert a defense to liability under this Guaranty if Lender forecloses non-judicially against real property security for the Guaranteed Obligations. By executing this Guaranty, Guarantor: (1) waives and relinquishes any such defense, (2) agrees that it will not assert that defense in any action or proceeding which Lender may commence to enforce this Guaranty, and (3) acknowledges and agrees that Lender is relying on this waiver in entering into the Loan Documents and making loans and advances thereunder, and that this waiver is a material part of the consideration which Lender is receiving for making such loans and advances. Without limiting the generality of the foregoing, Guarantor waives all rights and defenses arising out of an election of remedies by Lender even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by reason of the operation of CCP Section 580d or otherwise.

Special State Provisions. Guarantor hereby acknowledges (a) Notwithstanding the express intention of the parties that New York law shall apply to this Guaranty, if and agrees to the extent that (1) a court of competent jurisdiction determines that California applies to this Guaranty is not secured by Guaranty, with respect to the Security Instrument or by any real property foregoing provisions contained in this Guaranty, the following shall apply with respect to the State of California: Guarantor hereby waives the rights and benefits under California Civil Code (“CC”) Section 2819, and (2) this Guaranty is not governed agrees that by or subject to doing so Guarantor’s liability shall continue even if the laws of the State of California, and the following waivers and other terms and conditions of this Guaranty are given by Guarantor out of an abundance of caution at the request of Lender (and that the same forms a material part of the consideration for Lender to make the Loan) in the event alters any obligations under the Loan is ever characterized as being governed by Documents in any respect or the laws of the State of California or this Guaranty is subject to interpretation under the laws of the State of California (but that it is not Lender’s remedies or rights against the Borrower are in any way impaired or suspended without Guarantor’s intention to so characterize the Loan)consent. Subject to the foregoing: (a) Guarantor hereby expressly waives any and all benefits and defenses under California Civil Code (“CC”)CC Section 2810 and agrees that by doing so Guarantor is liable even if the Borrower had no liability at the time of execution of the Note or thereafter ceased to be liable. Guarantor hereby waives any and all benefits and defenses under CC Section 2809 and agrees that by doing so Guarantor’s liability may be larger in amount and more burdensome than that of the Borrower. Guarantor hereby waives any and all benefits and defenses under CC Sections 2845, Section 2787-28552849, inclusive2850, and 2899, 2953 2899 and 3433, including, without limitation, the right to require the Lender to (i) proceed against the Borrower or any Guarantor other guarantor or other pledgor, (ii) proceed against or exhaust any security or collateral the Lender may hold, or (iii) pursue any other right or remedy for the benefit of Guarantor. Guarantor hereby expressly waives any and all benefits and defenses under (A) California Code of Civil Procedure (“CCP”) Section 580a which would otherwise limit Guarantor’s liability after a non-judicial foreclosure sale to the difference between the obligations guaranteed herein and the value of the property or interest sold at such non-judicial foreclosure sale as determined by a fair value hearing or otherwisebenefit, (B) CCP Sections 580b and 580d, which would otherwise limit Lender’s, right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial foreclosure sale, respectively, and (C) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained or a deficiency judgment may be pursued and would limit Guarantor’s liability after a judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair value of the property or interest sold at such judicial foreclosure sale. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, and notwithstanding enforcement of any other guaranty executed in connection with the Loan Documents, Guarantor shall remain bound under this Guaranty. Guarantor acknowledges that it has been made aware of the provisions of CC Section 2856, has read and understands the provisions of that statute, has had the opportunity to seek the advice of its counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive all suretyship rights and defenses described in CC Section 2856(a). (b) Without limiting any other waivers herein, Guarantor hereby gives the following waivers with respect to CC Sections 2856(c) and (d): (i) Guarantor waives all rights and defenses that the Guarantor may have because the debtor’s debt is secured by real property. This means among other things: (A) the creditor may collect from the Guarantor without first foreclosing on any real or personal property pledged by the debtor; (B) if the creditor forecloses on any real property collateral pledged by the debtor: (1) 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; (2) the creditor may collect from the Guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based on Sections 580a, 580b, 580d or 726 of the Code of Civil Procedure. (ii) Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise. (c) To the full extent permitted by law, Guarantor waives any and all statutes of limitations as a defense to any or all of the Guaranteed Obligations. (d) Guarantor waives any and all provisions of law and equitable principles that conflict with this Guaranty. (e) Guarantor waives any right to require Lender and Lender shall not have any obligation, to provide to Guarantor any information concerning performance of the Obligations, the ability of Borrower to perform the Obligations, or any other matter, regardless of what information Lender may have from time to time. (f) Until such time as the Debt has been fully and finally paid, performed and discharged and Guarantor shall have paid and performed all of its obligations under this Guaranty, Guarantor waives any and all present and future claims, remedies, and rights of Guarantor against Borrower, any Guarantor, the collateral, and any other property, interests in property, or rights to property of Borrower or any Guarantor (i) arising from any performance by Guarantor hereunder, (ii) arising from any application of any collateral or any other property, interests in property, or rights to property of Guarantor to payment or performance of the Guaranteed Obligations, or (iii) otherwise arising in respect of the Loan Documents, regardless of whether such claims, remedies, and rights arise under any present or future agreement, document, or instrument or are provided by any law, ordinance, regulation, or rule (federal, state, or local) (including, without limitation, (A) any and all rights of contribution, exoneration, indemnity, reimbursement, and subrogation, and (B) any and all rights to participate in the rights and remedies of Lender against Borrower, any Guarantor, and the collateral). Guarantor understands and acknowledges that Guarantor may, by reason of the foregoing waivers, incur a partially or totally non-reimbursable liability hereunder, nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in its sole discretion, any right and remedies or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. For example, but without limiting the generality of the foregoing, under California law (CCP Section 580d as interpreted in Union Bank x. Xxxxxxx, 265 Cal. App. 2d 40 (1968) which was decided prior to the enactment of CCP Section 2856) Guarantor could attempt to assert a defense to liability under this Guaranty if Lender forecloses non-judicially against real property security for the Guaranteed Obligations. By executing this Guaranty, Guarantor: (1) waives and relinquishes any such defense, (2) agrees that it will not assert that defense in any action or proceeding which Lender may commence to enforce this Guaranty, and (3) acknowledges and agrees that Lender is relying on this waiver in entering into the Loan Documents and making loans and advances thereunder, and that this waiver is a material part of the consideration which Lender is receiving for making such loans and advances. Without limiting the generality of the foregoing, Guarantor waives all rights and defenses arising out of an election of remedies by Lender even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by reason of the operation of CCP Section 580d or otherwise.the

Special State Provisions. Guarantor hereby acknowledges and agrees that (1) this Guaranty is not secured by the Security Instrument Mortgage or by any real property in the State of California, and (2) this Guaranty is not governed by or subject to the laws of the State of California, and the following waivers and other terms and conditions of this Guaranty are given by Guarantor out of an abundance of caution at the request of Lender (and that the same forms a material part of the consideration for Lender to make the Loan) in the event the Loan is ever characterized as being governed by the laws of the State of California or this Guaranty is subject to interpretation under the laws of the State of California (but that it is not Lender’s or Guarantor’s intention to so characterize the Loan). Subject to the foregoing: (a) Guarantor hereby expressly waives any and all benefits and defenses under California Civil Code (“CC”), Section 2787-2855, inclusive, and 2899, 2953 and 3433, including, without limitation, the right to require Lender to (i) proceed against Borrower or any Guarantor or other pledgor, (ii) proceed against or exhaust any security or collateral Lender may hold, or (iii) pursue any other right or remedy for the benefit of Guarantor. Guarantor hereby expressly waives any and all benefits and defenses under (A) California Code of Civil Procedure (“CCP”) Section 580a which would otherwise limit Guarantor’s liability after a non-judicial foreclosure sale to the difference between the obligations guaranteed herein and the value of the property or interest sold at such non-judicial foreclosure sale as determined by a fair value hearing or otherwise, (B) CCP Sections 580b and 580d, which would otherwise limit Lender’s, right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial foreclosure sale, respectively, and (C) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained or a deficiency judgment may be pursued and would limit Guarantor’s liability after a judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair value of the property or interest sold at such judicial foreclosure sale. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, and notwithstanding enforcement of any other guaranty executed in connection with the Loan Documents, Guarantor shall remain bound under this Guaranty. Guarantor acknowledges that it has been made aware of the provisions of CC Section 2856, has read and understands the provisions of that statute, has had the opportunity to seek the advice of its counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive all suretyship rights and defenses described in CC Section 2856(a). (b) Without limiting any other waivers herein, Guarantor hereby gives the following waivers with respect to CC Sections 2856(c) and (d): (i) Guarantor waives all rights and defenses that the Guarantor may have because the debtor’s debt is secured by real property. This means among other things: (A) the creditor may collect from the Guarantor without first foreclosing on any real or personal property pledged by the debtor; (B) if the creditor forecloses on any real property collateral pledged by the debtor: (1) 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; (2) the creditor may collect from the Guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based on CCP Sections 580a, 580b, 580d or 726 of the Code of Civil Procedure726, CC Sections 2787 through 2855, 2899, 2953 and 3433, and any successor sections, or similar laws in other states. (ii) Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal by operation of CCP Section 580d of the Code of Civil Procedure or otherwise. (c) To the full extent permitted by law, Guarantor waives any and all statutes of limitations as a defense to any or all of the Guaranteed Obligations. (d) Guarantor waives any and all provisions of law and equitable principles that conflict with this Guaranty. (e) Except as expressly provided in the Loan Documents, Guarantor waives any right to require Lender Lender, and Lender shall not have any obligation, to provide to Guarantor any information concerning performance of the Obligations, the ability of Borrower to perform the Obligations, or any other matter, regardless of what information Lender may have from time to time. (f) Until such time as (i) the Debt has been fully indefeasible payment in full of all principal, accrued interest and finally paidother amounts payable to the Lender under the Loan Documents, performed and discharged and Guarantor shall have paid and performed all (ii) the indefeasible satisfaction in full of its obligations under this Guarantythe Guaranteed Recourse Obligations of Borrower, Guarantor waives any and all present and future claims, remedies, and rights of Guarantor against Borrower, any Guarantor, the collateral, and any other property, interests in property, or rights to property of Borrower or any Guarantor (i) arising from any performance by Guarantor hereunder, (ii) arising from any application of any collateral or any other property, interests in property, or rights to property of Guarantor to payment or performance of the Guaranteed Obligations, or (iii) otherwise arising in respect of the Loan Documents, regardless of whether such claims, remedies, and rights arise under any present or future agreement, document, or instrument or are provided by any law, ordinance, regulation, or rule (federal, state, or local) (including, without limitation, (A) any and all rights of contribution, exoneration, indemnity, reimbursement, and subrogationsubrogation (including, without limitation, any right Guarantor would otherwise have under CC Sections 2847 and 2848), and (B) any and all rights to participate in the rights and remedies of Lender against Borrower, any Guarantor, and the collateral). Guarantor understands and acknowledges that Guarantor may, by reason of the foregoing waivers, incur a partially or totally non-reimbursable liability hereunder, nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in its sole discretion, any right and remedies or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. For example, but without limiting the generality of the foregoing, under California law (CCP Section 580d as interpreted in Union Bank x. Xxxxxxx, 265 Cal. App. 2d 40 (1968) which was decided prior to the enactment of CCP Section 2856) Guarantor could attempt to assert a defense to liability under this Guaranty if Lender forecloses non-judicially against real property security for the Guaranteed Obligations. By executing this Guaranty, Guarantor: (1) waives and relinquishes any such defense, (2) agrees that it will not assert that defense in any action or proceeding which Lender may commence to enforce this Guaranty, and (3) acknowledges and agrees that Lender is relying on this waiver in entering into the Loan Documents and making loans and advances thereunder, and that this waiver is a material part of the consideration which Lender is receiving for making such loans and advances. Without limiting the generality of the foregoing, Guarantor waives all rights and defenses arising out of an election of remedies by Lender even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by reason of the operation of CCP Section 580d or otherwise. (g) To the fullest extent permitted by law, Guarantor hereby expressly waives all rights and benefits under Section 2809 of the California Civil Code purporting to reduce a guarantor’s obligations in proportion to the principal obligation. (h) Guarantor hereby expressly waives any right Guarantor might have to revoke this Guaranty as to any advances made by Lender to or on behalf of Borrower or pursuant to the terms of any of the Loan Documents, Guarantor specifically acknowledging that there is a continuing consideration to Guarantor for this Guaranty and therefore Guarantor waives and relinquishes the right to revoke or terminate this Guaranty as provided in California Civil Code Section 2815. (i) Guarantor consents to the waiver by Borrower of all of its rights under California Civil Code Section 2822, which provides as follows: " (a) The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a surety thereof, in the same measure as that of the principal, but does not otherwise affect it. However, if the surety is liable upon only a portion of an obligation and the principal provides partial satisfaction of the obligation, the principal may designate the portion of the obligation that is to be satisfied; and (b) For purposes of this section and Section 2819, an agreement by a creditor to accept from the principal debtor a sum less than the balance owed on the original obligation, without the prior consent of the surety and without any other change to the underlying agreement between the creditor and principal debtor, shall not exonerate the surety for the lesser sum agreed upon by the creditor and principal debtor."

Special State Provisions. Guarantor hereby acknowledges (a) To the extent California law applies, nothing herein shall be deemed to limit the right of Agent and/or Lenders to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and agrees costs, incurred by Agent and/or Lenders and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to Agent and/or Lenders, or any order, consent decree or settlement 62362452 relating to the cleanup of Hazardous Substances or any other “environmental provision” (as defined in such Section 736) relating to the Property or any portion thereof or the right of Agent and/or Lenders to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security of the Mortgages as to any parcel of the Mortgaged Property that is “environmentally impaired” or is an “affected parcel” (1) this Guaranty is not secured by the Security Instrument or by any real property as such terms are defined in the State of Californiasuch Section 726.5), and (2) this Guaranty is not governed by or subject as to any personal property attached to such parcel, and thereafter to exercise against Borrower, to the laws extent permitted by such Section 726.5, the rights and remedies of the State any unsecured creditor, including reduction of CaliforniaAgent and/or Lender’s claim against Borrower to judgment, and any other rights and remedies permitted by law. (b) To the following waivers extent California law applies, each Recourse Liability Party hereby waives all rights and other terms and conditions of this Guaranty are given by Guarantor defenses arising out of an abundance election of caution at remedies by Agent and/or Lenders even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed such Recourse Liability Party’s rights of subrogation and reimbursement against the request principal by the operation of Lender (and that the same forms a material part Section 580d of the consideration California Code of Civil Procedure or otherwise. Specifically, and without in any way limiting the foregoing, each Recourse Liability Party 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 right of recourse to or with respect to Borrower or the assets or property of Borrower or to any collateral for Lender to make the Loan) in the event the Loan is ever characterized as being governed by the laws of the State of California or this Guaranty is subject to interpretation under the laws of the State of California (but that it is not Lender’s or Guarantor’s intention to so characterize the Loan). Subject to In connection with the foregoing: (a) Guarantor hereby , each Recourse Liability Party expressly waives any and all benefits and defenses under California Civil Code (“CC”), Section 2787-2855, inclusiverights of subrogation against Borrower, and 2899, 2953 such Recourse Liability Party hereby waives any rights to enforce any remedy which Agent and/or Lenders may have against Borrower and 3433, including, without limitation, the any right to require Lender to (i) proceed against Borrower or participate in any Guarantor or other pledgor, (ii) proceed against or exhaust any security or collateral Lender may hold, or (iii) pursue any other right or remedy for the benefit Loan. Each Recourse Liability Party recognizes that, pursuant to Section 580d of Guarantor. Guarantor hereby expressly waives any and all benefits and defenses under (A) the California Code of Civil Procedure (“CCP”) Section 580a which would otherwise limit GuarantorProcedure, Agent and/or Lenders’ realization through nonjudicial foreclosure upon any real property constituting security for Borrower’s liability after a non-judicial foreclosure sale to obligations under the difference between the obligations guaranteed herein and the value Loan Documents could terminate any right of the property or interest sold at such non-judicial foreclosure sale as determined by a fair value hearing or otherwise, (B) CCP Sections 580b and 580d, which would otherwise limit Lender’s, right Agent and/or Lenders’ 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 Recourse Liability Party hereby unconditionally and irrevocably waives any such defense. In addition to and without in any way limiting the foregoing, each Recourse Liability Party hereby subordinates any and all indebtedness of Borrower now or hereafter owed to such Recourse Liability Party to all the indebtedness of Borrower to Lenders and agrees with Agent and Lenders that until such time as Agent and Lenders may have no further claim against Borrower, such Recourse Liability Party shall not demand or accept any payment of principal or interest from Borrower, claim any offset or other reduction of such Recourse Liability Party’s obligations hereunder because of any such indebtedness and shall not take any action to obtain any of the collateral for the Loan. Further, no Recourse Liability Party shall have any right of recourse against Agent or Lenders by reason of any action Agent or Lenders may take or omit to take under the provisions of this Agreement or under the provisions of any of the Loan Documents. If any amount shall nevertheless be paid to a Recourse Liability Party by Borrower or another guarantor prior to payment in full of the Obligations, such amount shall be held in trust for the benefit of Agent and Lenders and shall forthwith be paid to Agent to be credited and applied to the Obligations, whether matured or unmatured. The provisions of this paragraph shall survive any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law, except payment 62362452 in full of the Obligations. Without limiting the foregoing, each Recourse Liability Party waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Recourse Liability Party by reason of California Civil Code Sections 2787 to 2855, inclusive; (ii) any rights or defenses such Recourse Liability Party may have with respect to purchase money its obligations and after as a non-judicial foreclosure sale, respectively, guarantor by reason of any election of remedies by Agent and/or Lenders; and (Ciii) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained or a deficiency judgment may be pursued and would limit Guarantor’s liability after a judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair value of the property or interest sold at such judicial foreclosure sale. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, and notwithstanding enforcement of any other guaranty executed in connection with the Loan Documents, Guarantor shall remain bound under this Guaranty. Guarantor acknowledges that it has been made aware of the provisions of CC Section 2856, has read and understands the provisions of that statute, has had the opportunity to seek the advice of its counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive all suretyship rights and defenses described in CC Section 2856(a). (b) Without limiting any other waivers herein, Guarantor hereby gives the following waivers with respect to CC Sections 2856(c) and (d): (i) Guarantor waives all rights and defenses that the Guarantor such Recourse Liability Party may have because the debtorBorrower’s debt is secured by real property. This means means, among other things: (A) the creditor , that Agent and/or Lenders may collect from the Guarantor each Recourse Liability Party without first foreclosing on any real or personal property collateral pledged by the debtor; (B) Borrower, and that if the creditor forecloses Agent or Lenders foreclose on any real property collateral pledged by the debtor: Borrower (1A) 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 (2B) the creditor Agent and Lenders may collect from the Guarantor such Recourse Liability Party even if the creditorAgent or Lenders, by foreclosing on the real property collateral, has have destroyed any right the Guarantor rights such Recourse Liability Party may have to collect from the debtorBorrower. This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor each Recourse Liability Party may have because the debtorBorrower’s 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 on Sections upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. (ii) Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise. (c) To the full extent permitted by law, Guarantor waives any and all statutes of limitations as a defense to any or all of the Guaranteed Obligations. (d) Guarantor waives any and all provisions of law and equitable principles that conflict with this Guaranty. (e) Guarantor waives any right to require Lender and Lender shall not have any obligation, to provide to Guarantor any information concerning performance of the Obligations, the ability of Borrower to perform the Obligations, or any other matter, regardless of what information Lender may have from time to time. (f) Until such time as the Debt has been fully and finally paid, performed and discharged and Guarantor shall have paid and performed all of its obligations under this Guaranty, Guarantor waives any and all present and future claims, remedies, and rights of Guarantor against Borrower, any Guarantor, the collateral, and any other property, interests in property, or rights to property of Borrower or any Guarantor (i) arising from any performance by Guarantor hereunder, (ii) arising from any application of any collateral or any other property, interests in property, or rights to property of Guarantor to payment or performance of the Guaranteed Obligations, or (iii) otherwise arising in respect of the Loan Documents, regardless of whether such claims, remedies, and rights arise under any present or future agreement, document, or instrument or are provided by any law, ordinance, regulation, or rule (federal, state, or local) (including, without limitation, (A) any and all rights of contribution, exoneration, indemnity, reimbursement, and subrogation, and (B) any and all rights to participate in the rights and remedies of Lender against Borrower, any Guarantor, and the collateral). Guarantor understands and acknowledges that Guarantor may, by reason of the foregoing waivers, incur a partially or totally non-reimbursable liability hereunder, nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in its sole discretion, any right and remedies or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. For example, but without limiting the generality of the foregoing, under California law (CCP Section 580d as interpreted in Union Bank x. Xxxxxxx, 265 Cal. App. 2d 40 (1968) which was decided prior to the enactment of CCP Section 2856) Guarantor could attempt to assert a defense to liability under this Guaranty if Lender forecloses non-judicially against real property security for the Guaranteed Obligations. By executing this Guaranty, Guarantor: (1) waives and relinquishes any such defense, (2) agrees that it will not assert that defense in any action or proceeding which Lender may commence to enforce this Guaranty, and (3) acknowledges and agrees that Lender is relying on this waiver in entering into the Loan Documents and making loans and advances thereunder, and that this waiver is a material part of the consideration which Lender is receiving for making such loans and advances. Without limiting the generality of the foregoing, Guarantor waives all rights and defenses arising out of an election of remedies by Lender even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by reason of the operation of CCP Section 580d or otherwise.

Special State Provisions. (a) To the extent permitted by law, Guarantor hereby acknowledges also waives and agrees that (1) this Guaranty is not secured by the Security Instrument to assert or by any real property in the State of California, and (2) this Guaranty is not governed by or subject to the laws of the State of California, and the following waivers and other terms and conditions of this Guaranty are given by Guarantor out of an abundance of caution at the request of Lender (and that the same forms a material part of the consideration for Lender to make the Loan) in the event the Loan is ever characterized as being governed by the laws of the State of California or this Guaranty is subject to interpretation under the laws of the State of California (but that it is not Lender’s or Guarantor’s intention to so characterize the Loan). Subject to the foregoingtake advantage of: (ai) Guarantor hereby expressly waives Any defense based upon Lender’s election of any and all benefits and defenses under California Civil Code (“CC”), Section 2787-2855, inclusive, and 2899, 2953 and 3433remedy against any Guarantor, including, without limitation, the right defense to require Lender to (i) proceed against Borrower or any Guarantor or other pledgor, (ii) proceed against or exhaust any security or collateral Lender may hold, or (iii) pursue any other right or remedy for the benefit of Guarantor. Guarantor hereby expressly waives any and all benefits and defenses under (A) California Code of Civil Procedure (“CCP”) Section 580a which would otherwise limit Guarantor’s liability after a non-judicial foreclosure sale to the difference between the obligations guaranteed herein and the value of the property or interest sold at such non-judicial foreclosure sale as determined by a fair value hearing or otherwise, (B) CCP Sections 580b and 580d, which would otherwise limit Lender’s, right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial foreclosure sale, respectively, and (C) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained or a deficiency judgment may be pursued and would limit Guarantor’s liability after a judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair value of the property or interest sold at such judicial foreclosure sale. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, and notwithstanding enforcement of any other guaranty executed in connection with this Agreement (the Loan Documents, Guarantor shall remain bound under this Guaranty. Guarantor acknowledges that it has been made aware of the provisions of CC Section 2856, has read and understands the provisions of that statute, has had the opportunity to seek the advice of its counsel as to the scope, purpose and effect of that statute, and "Gradsky" defense based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive all suretyship rights and defenses described in CC Section 2856(a). (b) Without limiting any other waivers herein, Guarantor hereby gives the following waivers with respect to CC Sections 2856(c) and (d): (i) Guarantor waives all rights and defenses that the Guarantor may have because the debtor’s debt is secured by real property. This means among other things: (A) the creditor may collect from the Guarantor without first foreclosing on any real or personal property pledged by the debtor; (B) if the creditor forecloses on any real property collateral pledged by the debtor: (1) 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; (2) the creditor may collect from the Guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based on Sections 580a, 580b, 580d or 726 of the Code of Civil Procedure. (ii) Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise. (c) To the full extent permitted by law, Guarantor waives any and all statutes of limitations as a defense to any or all of the Guaranteed Obligations. (d) Guarantor waives any and all provisions of law and equitable principles that conflict with this Guaranty. (e) Guarantor waives any right to require Lender and Lender shall not have any obligation, to provide to Guarantor any information concerning performance of the Obligations, the ability of Borrower to perform the Obligations, or any other matter, regardless of what information Lender may have from time to time. (f) Until such time as the Debt has been fully and finally paid, performed and discharged and Guarantor shall have paid and performed all of its obligations under this Guaranty, Guarantor waives any and all present and future claims, remedies, and rights of Guarantor against Borrower, any Guarantor, the collateral, and any other property, interests in property, or rights to property of Borrower or any Guarantor (i) arising from any performance by Guarantor hereunder, (ii) arising from any application of any collateral or any other property, interests in property, or rights to property of Guarantor to payment or performance of the Guaranteed Obligations, or (iii) otherwise arising in respect of the Loan Documents, regardless of whether such claims, remedies, and rights arise under any present or future agreement, document, or instrument or are provided by any law, ordinance, regulation, or rule (federal, state, or local) (including, without limitation, (A) any and all rights of contribution, exoneration, indemnity, reimbursement, and subrogation, and (B) any and all rights to participate in the rights and remedies of Lender against Borrower, any Guarantor, and the collateral). Guarantor understands and acknowledges that Guarantor may, by reason of the foregoing waivers, incur a partially or totally non-reimbursable liability hereunder, nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in its sole discretion, any right and remedies or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. For example, but without limiting the generality of the foregoing, under California law (CCP Section 580d as interpreted in upon Union Bank x. Xxxxxxx, 265 Cal. App. 2d 40 (1968) which was decided prior or subsequent cases) which, absent this waiver, Guarantor would have by virtue of an election by Lender to the enactment of CCP Section 2856) Guarantor could attempt to assert conduct a defense to liability under this Guaranty if Lender forecloses non-judicially against judicial foreclosure sale of the real property security for collateral that is encumbered by the Guaranteed Obligations. By executing this GuarantyMortgage (the "Trust Property"), Guarantor: (1) waives and relinquishes it being understood by Guarantor that any such defensenon-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure Section 580d, all rights of any party to a deficiency judgment against the Borrower, and, as a consequence, will destroy all rights which Guarantor would otherwise have (2) agrees that it will not assert that defense in any action or proceeding which Lender may commence to enforce this Guarantyincluding, without limitation, the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against the Borrower and to recover any such amount, and that Lender could be otherwise estopped from pursuing Guarantor for a deficiency judgment after a non-judicial foreclosure sale on the theory that a guarantor should be exonerated if a lender elects a remedy that eliminates the guarantor’s subrogation, reimbursement or contribution rights; (ii) Any rights under California Code of Civil Procedure Sections 580a and 726(b), which provide, among other things: that a creditor must file a complaint for deficiency within three (3) acknowledges and agrees months of a nonjudicial foreclosure sale or judicial foreclosure sale, as applicable; that Lender is relying on this waiver in entering into the Loan Documents and making loans and advances thereunder, a fair market value hearing must be held; and that this waiver is a material part the amount of the consideration deficiency judgment shall be limited to the amount by which Lender is receiving for making such loans and advances. the unpaid debt exceeds the fair market value of the security, but not more than the amount by which the unpaid debt exceeds the sale price of the security; and (iii) Without limiting the generality of the foregoingforegoing or any other provision hereof, Guarantor expressly waives any and all rights benefits which might otherwise be available to Guarantor under California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and defenses arising out 3433 and California Code of an election Civil Procedure Sections 580a, 580b, 580d and 726, or any of remedies by Lender even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by reason of the operation of CCP Section 580d or otherwisesections.