Common use of Trustor’s Waivers Clause in Contracts

Trustor’s Waivers. Trustor hereby waives: (a) any defense based upon any legal disability or other defense of Borrower, any other Trustor or other Person, or by reason of the cessation or limitation of the liability of Borrower from any cause other than full payment of all sums payable under the Notes 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 Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense based upon the application by Borrower of the proceeds of the Loans for purposes other than the purposes represented by Borrower to Beneficiary or any Lender or intended or understood by Beneficiary or any Lender or any Trustor; (d) any defense of any Trustor based upon Beneficiary’s or any Lender’s election of any remedy against any Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any Lender’s failure to disclose to any Trustor any information concerning Borrower’s financial condition or any other circumstances bearing on Borrower’s ability to pay all sums payable under the Notes or any of the other Loan Documents; (f) 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; (g) any defense based upon Beneficiary’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitation, any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, any right to enforce any remedy which Beneficiary or any Lender may have against Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held by Beneficiary or any Lender; (j) presentment, demand, protest and notice of any kind; and (k) the benefit of any statute of limitations affecting the liability of any Trustor hereunder or the enforcement hereof. Trustor agrees that the payment of all sums payable under the Credit Agreement, the Notes or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Credit Agreement, the Notes or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Obligations.

Trustor’s Waivers. Trustor hereby waives: ----------------- (ai) All statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary, to the fullest extent permitted by law; (ii) Any right it may have to require Beneficiary to proceed against Borrower or any other party, proceed against or exhaust any security held from Borrower or any other party (including, without limitation, any security encumbered by the Vista Verde Deed of Trust), or pursue any other remedy in Beneficiary's power to pursue; (iii) To the extent permitted by applicable law, the benefit of all laws now existing or which may hereafter be enacted providing for any appraisement, valuation, stay, extension, redemption or moratorium; (iv) For itself and its successors and assigns, all rights of marshaling in the event of foreclosure; (v) Any defense based upon on any claim that Trustor's obligations exceed or are more burdensome than those of Borrower; (vi) Any defense based on: (A) any legal disability or other defense of Borrower, (B) any other Trustor or other Personrelease, or by reason of the cessation discharge, modification, impairment or limitation of the liability of Borrower to Beneficiary from any cause other than full payment cause, whether consented to by Beneficiary or arising by operation of all sums payable under law or from any Insolvency proceeding and (C) any rejection disallowance or disaffirmance of the Notes Third Party Indebtedness, or any part of it, or any security held for it, in any such Insolvency Proceeding; (vii) Any defense based on any action taken or omitted by Beneficiary in any Insolvency Proceeding involving Borrower, including without limitation, filing, defending, settling or obtaining a judgment or order on any proof of claim, making any election to have Beneficiary's claim allowed as being secured, partially secured or unsecured, including any election under 11 U.S.C. Section 1111 (b), seeking relief from the automatic stay or adequate protection, including submitting an appraisal of any security, voting to reject or accept or failing to vote on any reorganization plan, making any extension of credit by Beneficiary to Borrower in any Insolvency Proceeding, and the taking and holding by Beneficiary of any security for any such extension of credit, whether or not such security is also security for the Third Party Indebtedness; (viii) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the other Loan Documentsexistence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind; (ix) Any defense based on or arising out of any defense that Borrower may have to the payment or performance of the Third Party Indebtedness or any part of it; and (x) Any defense based on or arising out of any action of Beneficiary described in subsections (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; and (c) any defense based upon the application by Borrower of the proceeds of the Loans for purposes other than the purposes represented by Borrower to Beneficiary or any Lender or intended or understood by Beneficiary or any Lender or any Trustor; (d) any defense of any Trustor based upon Beneficiary’s or any Lender’s election of any remedy against any Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any Lender’s failure to disclose to any Trustor any information concerning Borrower’s financial condition or any other circumstances bearing on Borrower’s ability to pay all sums payable under the Notes or any of the other Loan Documents; (f) 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; (g) any defense based upon Beneficiary’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitation, any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, any right to enforce any remedy which Beneficiary or any Lender may have against Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held by Beneficiary or any Lender; (j) presentment, demand, protest and notice of any kind; and (k) the benefit of any statute of limitations affecting the liability of any Trustor hereunder or the enforcement hereof. Trustor agrees that the payment of all sums payable under the Credit Agreement, the Notes or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Credit Agreement, the Notes or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Obligationsabove.

Trustor’s Waivers. Trustor hereby waives: (i) All statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary, to the fullest extent permitted by law; (ii) Any right it may have to require Beneficiary to proceed against the Issuer, proceed against or exhaust any security held from the Issuer, or pursue any other remedy in Beneficiary’s power to pursue; (iii) Any defense based on any claim that Trustor’s obligations exceed or are more burdensome than those of the Issuer; (iv) Any defense based on: (ai) any defense based upon any legal disability or other defense of Borrower, any other Trustor or other Person, or by reason of the cessation Issuer, (ii) any release, discharge, modification, impairment or limitation of the liability of Borrower the Issuer to Beneficiary from any cause cause, whether consented to by Beneficiary or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships (“Insolvency Proceeding”) and (iii) any rejection or disaffirmance of the Finance Documents, or any part of them, or any security held for them, in any such Insolvency Proceeding; (v) Any defense based on any action taken or omitted by Beneficiary in any Insolvency Proceeding involving the Issuer, including any election to have Beneficiary’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Beneficiary to the Issuer in any Insolvency Proceeding, and the taking and holding by Beneficiary of any security for any such extension of credit; (vi) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind (other than full payment any notices expressly required to be given under this Deed of all sums payable under the Notes Trust or any other instrument required by the Finance Documents); and (vii) Any defense based on or arising out of any defense that the Issuer may have to the payment or performance of the Finance Documents or any part of them, other Loan Documents; (b) than any defense based upon any lack gross negligence or willful misconduct of authority of the officers, directors, partners or agents acting or purporting to act on behalf of Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense based upon the application by Borrower of the proceeds of the Loans for purposes other than the purposes represented by Borrower to Beneficiary or any Lender Beneficiary or intended or understood any breach by Beneficiary or any Lender or any Trustor; (d) any defense Beneficiary of any Trustor based upon Beneficiary’s or any Lender’s election of any remedy against any Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any Lender’s failure their obligations to disclose to any Trustor any information concerning Borrower’s financial condition or any other circumstances bearing on Borrower’s ability to pay all sums payable the Issuer under the Notes or any of the other Loan Finance Documents; (f) 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; (g) any defense based upon Beneficiary’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitation, any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, any right to enforce any remedy which Beneficiary or any Lender may have against Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held by Beneficiary or any Lender; (j) presentment, demand, protest and notice of any kind; and (k) the benefit of any statute of limitations affecting the liability of any Trustor hereunder or the enforcement hereof. Trustor agrees that the payment of all sums payable under the Credit Agreement, the Notes or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Credit Agreement, the Notes or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Obligations.

Trustor’s Waivers. Trustor hereby waives: (a) any defense based upon any legal disability or Trustor has read and hereby approves the Indenture, the Common Agreement, the Bonds, the VEPCO Letters of Credit, the LOC Loans, the other defense Financing Documents and all other agreements and documents relating thereto. Trustor acknowledges that it has been represented by counsel of Borrowerits choice to review this Deed of Trust, any the Financing Documents and all other documents relating thereto and said counsel has explained and Trustor or other Personunderstands the provisions thereof, or by reason of the cessation or limitation of the liability of Borrower from any cause other than full payment of all sums payable under the Notes or any of the other Loan Documents; that Trustor has voluntarily declined to retain such counsel. (b) Trustor hereby expressly waives diligence, demand, presentment, protest and notice of every kind and nature whatsoever (unless as otherwise required under this Deed of Trust) and waives any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting right to act on behalf of Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense based upon the application by Borrower of the proceeds of the Loans for purposes other than the purposes represented by Borrower to require Beneficiary or any Lender other Senior Secured Party to enforce any remedy against any guarantor, endorser or intended other person whatsoever prior to the exercise of its rights and remedies hereunder or understood otherwise. Trustor waives any right to require Beneficiary or any other Senior Secured Party to: (i) proceed or exhaust any collateral security given or held by Beneficiary or any Lender or any Trustorother Senior Secured Party in connection with the Senior Secured Obligations; (dii) any defense give notice of the terms, time and place of any Trustor based upon Beneficiary’s public or any Lender’s election private sale of any real or personal property security for the Senior Secured Obligations or other guaranty of the Senior Secured Obligations; or (iii) pursue any other remedy against any Trustor or Borrower or both; (e) any defense based upon in Beneficiary’s or any Lender’s failure to disclose to any Trustor any information concerning Borrower’s financial condition 's or any other circumstances bearing on Borrower’s ability Senior Secured Party's power whatsoever. (c) Until all Senior Secured Obligations shall have been paid in full, Trustor: (i) shall not have any right of subrogation to pay all sums payable under the Notes or any of the rights of Beneficiary or any other Loan DocumentsSenior Secured Party against any guarantor, maker or endorser; (fii) 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; (g) any defense based upon Beneficiary’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitation, any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, waives any right to enforce any remedy which Beneficiary or any Lender other Senior Secured Party now has or may hereafter have against Borrower any other guarantor, maker or endorser; and (iii) waives any benefit of, and any other right to participate in, or benefit from, any collateral security for the Notes Senior Secured Obligations or any guaranty of the other Loan Documents Senior Secured Obligations now or hereafter held by Beneficiary or any Lender; other Senior Secured Party. (jd) presentmentSubject to any applicable provisions of the Indenture, demandTrustor hereby authorizes and empowers Beneficiary in its sole discretion, protest without any notice or demand and notice without affecting the Lien and charge of this Deed of Trust, to exercise any right or remedy which Beneficiary or any other Senior Secured Party may have available to it, including, but not limited to, judicial foreclosure, exercise of rights of power of sale without judicial action as to any collateral security for the Senior Secured Obligations, whether real, personal or intangible property. (e) To the full extent permitted by law, Trustor hereby covenants and agrees that it shall not at any time insist upon or plead, or in any manner whatsoever claim or take any advantage of, any stay, exemption or extension law or any so-called "moratorium law" now or at any time hereafter in force, nor claim, take or insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisement of the Trust Property, or any part thereof, prior to any sale or sales thereof to be made pursuant to any provisions herein contained, or to any decree, judgment or order of any kindcourt of competent jurisdiction; and (k) the benefit of or after such sale or sales claim or exercise any rights under any statute of limitations affecting now or hereafter in force to redeem the liability of property so sold, or any Trustor hereunder part thereof, to the extent such covenant and agreement is permitted by applicable law, or relating to the marshaling thereof, upon foreclosure sale or other enforcement hereof. To the full extent permitted by law, Trustor hereby expressly waives any and all rights it may have to require that the Trust Property be sold as separate tracts or units in the event of foreclosure. To the full extent permitted by law, Trustor hereby expressly waives any and all rights of redemption after sale under any order or decree of foreclosure of this Deed of Trust, on its own behalf, on behalf of all Persons claiming or having an interest (direct or indirect) by, through or under Trustor and on behalf of each and every Person acquiring any interest in or title to the Real Property subsequent to the date hereof, it being the intent hereof that any and all such rights of redemption of Trustor and of all other Persons, are and shall be deemed to be hereby waived to the full extent permitted by applicable law. To the full extent permitted by law, Trustor agrees that it shall not, by invoking or utilizing any applicable law or laws or otherwise, hinder, delay or impede the payment exercise of all sums payable under the Credit Agreementany right, the Notes power or remedy herein or otherwise granted or delegated to Beneficiary or any other Senior Secured Party, but shall suffer and permit the exercise of the other Loan Documents every such right, power and remedy as though no such law or any part thereof laws have been or other act which tolls any statute of limitations applicable to the Credit Agreement, the Notes will have been made or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Obligationsenacted.

Trustor’s Waivers. Except as prohibited by applicable law, Trustor hereby waives: waives any right to require Lender to (a) make any defense based upon presentment,. protest, demand, or notice of any legal kind, including notice of change at any terms of repayment of the indebtedness, default by Borrower or any other guarantor or surety, any action or nonaction taken by Borrower, Lender, or anyother guarantor or surety of Borrower, or the creation of new or additional Indebtedness; (b) proceed against any person, including Borrower, before proceeding against Trustor; (c) proceed against any collateral for the indebtedness, including Borrower's collateral, before proceeding against Trustor; (d) apply any payments or proceeds received against the indebtedness in any order; (e) give notice of the terms, time, and place of any sale of any collateral pursuant to the Uniform Commercial Code or any other law governing such sale; (f) disclose any information about the indebtedness, Borrower, any collateral, or any other guarantor or surety, or about any action or nonaction of Lender; or (g) pursue any remedy or course of action in Lender's power whatsoever. • THIS DOCUMENT FILED FOR RECORD BY LT.C. AS AN ACCOMODATION ONLY. IT HAS NOT BEEN EXAMINED AS TO ITS EFFECT UPON TITLE. DEED OF TRUST (Continued) Page2 Trustor also waives any end all rights or defenses arising by reason of (h) any disability or other defense of Borrower, any other Trustor guarantor or surety or any other Person, or by reason of person; (i) the cessation or limitation of the liability of Borrower from any cause whatsoever, other than full payment of all sums payable under the Notes or any in fulI, of the other Loan Documentsindebtedness; (bj) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense based upon the application by Borrower of the proceeds of the Loans Indebtedness by Borrower for purposes other than the purposes represented understood and intended by Borrower to Beneficiary or any Lender or intended or understood by Beneficiary or any Lender or any TrustorTrustor end Lender; (dk) any defense act of any Trustor based upon Beneficiary’s omission or any Lender’s election commission by Lender which directly or indirectly results in or contributes to the discharge of any remedy against any Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any Lender’s failure to disclose to any Trustor any information concerning Borrower’s financial condition or any other circumstances bearing on Borrower’s ability to pay all sums payable under guarantor or surety, or the Notes indebtedness, or the loss or release of any collateral by operation of the other Loan Documentslaw or otherwise; (fl) 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; (g) any defense based upon Beneficiary’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitation, any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, any right to enforce any remedy which Beneficiary or any Lender may have against Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held by Beneficiary or any Lender; (j) presentment, demand, protest and notice of any kind; and (k) the benefit of any statute of limitations affecting in any action under this Deed of Trust or on the liability indebtedness; or (m) any modiflcation or change in terms of the indebtedness, whatsoever. including without limitation, the renewal, extension, acceleration, or other change in the time payment of the indebtedness is due and any Trustor hereunder or change In the enforcement hereofinterest rate. Trustor agrees 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 Trustor's rights of subrogation and reimbursement against Borrower by the payment operation of all sums payable under the Credit Agreement, the Notes or any Section 580d of the other Loan Documents Califomia Code of Civil Procedure, or any part thereof or other act which tolls any statute of limitations applicable to the Credit Agreement, the Notes or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Obligationsotherwise.

Trustor’s Waivers. Trustor hereby waives: (i) All statutes of limitations as a defense to any action or proceeding brought against Trustor or the Mortgaged Property by Beneficiary or any Bank, to the fullest extent permitted by law; (ii) Any right it may have to require Beneficiary or any Bank to proceed against Company or any other Person, proceed against or exhaust any security held from Company or any Person, or pursue any other remedy in Beneficiary's or such Bank's power to pursue; (iii) Any defense based on any claim that Trustor's obligations exceed or are more burdensome than those of Company; (iv) Any defense: (aA) any defense based upon on any legal disability or other defense of BorrowerCompany, (B) based on any other Trustor or other Personrelease, or by reason of the cessation discharge, modification, impairment or limitation of the liability of Borrower from any cause other than full payment of all sums payable under the Notes 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 Borrower or any principal of Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense based upon the application by Borrower of the proceeds of the Loans for purposes other than the purposes represented by Borrower Company to Beneficiary or any Lender Bank from any cause, whether consented to by Beneficiary or intended arising by operation of law, (C) arising out of or understood able to be asserted as a result of any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of Company or any of its affiliates , or any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case as undertaken under any U.S. Federal or State law (each of the foregoing described in this clause (C) being referred to herein as an "Insolvency Proceeding"); or (D) arising from any rejection or disaffirmance of the Secured Obligations, or any part thereof, or any security held therefor, in any such Insolvency Proceeding; (v) Any defense based on any action taken or omitted by Beneficiary or any Lender or any Trustor; (d) any defense of any Trustor based upon Beneficiary’s or any Lender’s election of any remedy against any Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any Lender’s failure to disclose to any Trustor any information concerning Borrower’s financial condition or any other circumstances bearing on Borrower’s ability to pay all sums payable under the Notes or any of the other Loan Documents; (f) 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 Bank in any other respects more burdensome than that of a principal; (g) Insolvency Proceeding involving Company, including any defense based upon election to have Beneficiary’s 's or any Lender’s electionsuch Bank's claim allowed as being secured, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code partially secured or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (i) any and all rights and defenses, including, without limitationunsecured, any rights extension of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to any Trustor under any applicable laws, any right to enforce any remedy which Beneficiary or any Lender may have against Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held credit by Beneficiary or any Lender; (j) presentmentBank to Company in any Insolvency Proceeding, demand, protest and notice the taking and holding by Beneficiary or such Bank of any security for any such extension of credit; (vi) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of intention to accelerate, notices of acceleration, notices of acceptance of this Deed of Trust or any other Loan Document and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind; and and (kvii) the benefit Any defense based on or arising out of any statute of limitations affecting the liability of any Trustor hereunder or the enforcement hereof. Trustor agrees defense that the payment of all sums payable under the Credit Agreement, the Notes Company or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable its affiliates may have to the Credit Agreement, payment or performance of the Notes or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to the Guaranteed Secured Obligations.