Common use of Environmental Impairment Clause in Contracts

Environmental Impairment. Subject to the terms and conditions of the Loan Agreement, Beneficiary may waive its lien against the Property or any portion thereof, whether fixtures or personal property, to the extent such property is found to be “environmentally impaired” or an “affected parcel” in accordance with California Code of Civil Procedure Section 726.5 and may exercise any and all rights and remedies of an unsecured creditor against Trustor and all of Trustor’s assets and property for the recovery of any deficiency and Environmental Costs (as hereinafter defined), including, but not limited to, seeking an attachment order under California Code of Civil Procedure Section 483.010. The term “Environmental Costs” shall mean any costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, and other out-of-pocket costs or expenses actually incurred or advanced by Beneficiary relating to the cleanup, remediation or other response action required by Environmental Laws or which Beneficiary believes necessary to protect the Property. As between Beneficiary and Trustor, for purposes of California Code of Civil Procedure Section 726.5, Trustor shall have the burden of proving that Trustor or any related party (or any Affiliate or agent of Trustor or any related party) was not in any way negligent in permitting the release or threatened release of Hazardous Substances. Trustor acknowledges and agrees that, subject to any term or provision contained herein or in the other Loan Documents, all judgments and awards entered against Trustor pursuant to this paragraph, paragraph (e) of Section 14.07 below, and all Environmental Costs, shall be exceptions to any nonrecourse or exculpatory provision of the Loan Documents, and Trustor shall be fully and personally liable for all judgments and awards entered against Trustor under this paragraph, paragraph (e) below, and Environmental Costs, and such liability shall not be limited to the original principal amount of the obligations secured by this Deed of Trust and Trustor’s obligations shall survive the foreclosure, deed in lieu of foreclosure, release, reconveyance or any other transfer of the Property or this Deed of Trust. For the purpose of any action brought under this Section or Section 14.07 below, Trustor waives the defense of laches and any applicable statute of limitations.

Environmental Impairment. Subject to the terms In furtherance of and conditions not in limitation of the Loan Agreementany other provisions of this Security Instrument, Beneficiary including without limitation Section 1.03: In accordance with California Code of Civil Procedure Section 726.5, Lender may waive its lien against the Property or any portion thereof, whether together with fixtures or personal propertyproperty thereon, to the extent such property is found to be “environmentally impaired” or an “affected parcel” in accordance with California Code of Civil Procedure Section 726.5 , and may exercise any and all rights and remedies of an unsecured creditor against Trustor Borrower and all of Trustor’s Borrower's assets and property for the recovery of any deficiency and Environmental Costs (as hereinafter defined)deficiency, including, but not limited towithout limitation, seeking an attachment order under California Code of Civil Procedure Section 483.010. The term “Environmental Costs” No such waiver shall mean any costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, be final or binding on Lender unless and other out-of-pocket costs or expenses actually incurred or advanced by Beneficiary relating to the cleanup, remediation or other response action required by Environmental Laws or which Beneficiary believes necessary to protect the Propertyuntil a final money judgment is obtained against Borrower. As between Beneficiary Lender and TrustorBorrower, for purposes of California Code of Civil Procedure Section 726.5, Trustor Borrower shall have the burden of proving that Trustor the release or threatened release was not knowingly or negligently caused or contributed to, or knowingly or willfully permitted or acquiesced to by Borrower or any related party (or any Affiliate affiliate or agent of Trustor Borrower or any related party) was not in any way negligent in permitting and that Borrower made written disclosure of the release to Lender or threatened release that Lender otherwise obtained actual knowledge thereof prior to the making of Hazardous Substancesthe loan evidenced by the Note. Trustor acknowledges and agrees that, subject Notwithstanding anything to any term the contrary contained in this Security Instrument or provision contained herein or in the other Loan Documents, all judgments and awards entered against Trustor pursuant to this paragraph, paragraph (e) of Section 14.07 below, and all Environmental Costs, shall be exceptions to any nonrecourse or exculpatory provision of the Loan Documents, and Trustor Borrower shall be fully and personally liable for all judgments and awards entered against Trustor under this paragraph, paragraph (e) below, and Environmental Costs, Borrower pursuant to California Code of Civil Procedure 726.5 and such liability shall be an exception to any non-recourse or exculpatory provision in this Security Instrument or the other Loan Documents and shall not be limited to the original principal amount of the obligations secured by this Deed of Trust and Trustor’s Security Instrument. Borrower's obligations hereunder shall survive the foreclosure, deed in lieu of foreclosure, release, reconveyance or any other transfer of the Property or this Deed of TrustSecurity Instrument. For the purpose of any action brought under this Section or Section 14.07 belowSection, Trustor Borrower hereby waives the defense of laches and any applicable statute of limitations. For purposes of California Code of Civil Procedure 726.5, the acts, knowledge and notice of each "726.5 Party" shall be attributed to and be deemed to have been performed by the party or parties then obligated on and liable for payment of the Note. As used herein, '726.5 Party" shall mean Borrower, any successor owner to Borrower of all or any portion of the Property, any related party of Borrower or any such successor and any affiliate or agent of Borrower, any such successor or any such related party. Borrower hereby confirms the right of Lender (or a receiver appointed by Xxxxxx to enter upon and inspect all or any portion of the Property for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any hazardous substance into, onto, beneath, or from the Property in accordance with Section 2929.5 of the California Civil Code. All reasonable costs and expenses incurred by Lender pursuant to this provision or pursuant to Section 2929.5 of the California Civil Code, including, without limitation, costs of consultants and contractors, costs of repair of any physical Injury to the Property normal and customary to the tests and studies, court costs and attorneys' fees, costs and expenses, whether incurred in litigation or not and whether before or -42­ Description: San BernardinorCA Document-year.DocID 2005.202686 Page: 43 of 58 Order: 327283 Comment: alien judgment, shall be payable by Xxxxxxxx and the Indemnitor(s) (other than Borrower) under the Environmental Indemnification Agreement executed in connection with the Loan ("Indemnitor(s),) and, to the extent advanced or incurred by Xxxxxx, shall be reimbursed to Lender by Xxxxxxxx and the lndemnitor(s) upon demand. This provision is separate and several, and shall survive merger into any Judgment. In addition, Xxxxxx shall have the right to appoint a receiver when permitted under Section 564 of the California Code of Civil Procedure, including, without limitation, in order to enforce Lender's rights under Section 2929.5 of the California Civil Code. The receiver shall have all of the rights and powers to the fullest extent permitted by law. The receiver shall have the right to apply Rents to cleanup, remediation or other response action concerning the release or threatened release of Hazardous Materials, whether or not such actions are pursuant to an order of any federal, state or local governmental agency.

Environmental Impairment. Subject to the terms and conditions of the Loan Agreement, Beneficiary may waive its lien against the Property or any portion thereof, whether fixtures or personal property, to the extent such property is found to be “environmentally impaired” or an “affected parcel” impaired in accordance with California Code of Civil Procedure Section 726.5 and may exercise any and all rights and remedies of an unsecured creditor against Trustor and all of Trustor’s assets and property for the recovery of any deficiency and Environmental Costs (as hereinafter defined), including, but not limited to, seeking an attachment order under California Code of Civil Procedure Section 483.010483.01. The term “"Environmental Costs” " shall mean any costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, and other out-of-pocket costs or expenses actually incurred or advanced by Beneficiary relating to the cleanup, remediation or other response action required by Environmental Laws or which Beneficiary believes necessary to protect the Property in connection with an environmentally impaired condition of the Property. As between Beneficiary and Trustor, for purposes of California Code of Civil Procedure Section 726.5, Trustor shall have the burden of proving that Trustor or any related party (or any Affiliate or agent of Trustor or any related party) was not in any way negligent in permitting the release or threatened release of Hazardous Substances. Trustor acknowledges and agrees that, subject to that notwithstanding any term or provision contained herein or in the other Loan Documents, all judgments and awards entered against Trustor pursuant to this paragraph, paragraph (e) of Section 14.07 below, and all for Environmental Costs, Costs shall be exceptions to any nonrecourse or exculpatory provision of the Loan Documents, and Trustor shall be fully and personally liable for all judgments and awards entered against Trustor under this paragraph, paragraph (e) below, and hereunder for Environmental Costs, Costs and such liability shall not be limited to the original principal amount of the obligations secured by this Deed of Trust Security Instrument and Trustor’s obligations shall survive the foreclosure, deed in lieu of foreclosure, release, reconveyance or any other transfer of the Property or this Deed Security Instrument; provided that for any event or condition that first arises on or after the date on which Lender or any Affiliate of TrustLender acquires title to the Property (whether at foreclosure sale, a transfer in lieu of foreclosure or any other transfer), Trustor’s obligation for any Environmental Costs shall continue in perpetuity after Lender or its Affiliates acquires title or control of the Property unless such specified event or condition occurs during or after Lender’s (or its Affiliate’s) period of ownership and provided that Trustor shall bear the burden of proving that such specified event or condition occurred during or after Lender’s (or such Affiliate’s) period of ownership. For the purpose of any action brought under this Section Paragraph or Section 14.07 Paragraph 38, below, Trustor waives the defense of laches and any applicable statute of limitations.