Common use of Transfer of Guarantees Clause in Contracts

Transfer of Guarantees. Acquiror and Contributor acknowledge that certain parties (the “Guarantors”), have delivered guarantees and/or indemnitees (the “Guarantees”), in connection with the Contributor Property Indebtedness encumbering the Property. Acquiror and Contributor agree that, as a part of the contribution of the Member Interest to the UPREIT, and to the extent possible, the UPREIT will assume the obligations of the Guarantors under the Guarantees. The UPREIT shall indemnify and defend the Guarantors from and against any claims, causes of action, judgments, losses, costs, damages and expenses, including, without limitation, attorneys’ fees of counsel selected by the Guarantors and costs of litigation (collectively, the “Losses”) which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only if and to the extent that such Losses are suffered or incurred as a result of, or due to, or because of, acts or omissions first occurring from and after the Closing Date (collectively, “Post-Closing Losses”). Notwithstanding the foregoing, if such lender requires that, as a condition of granting its consent to such transfer of the Guarantors’ liability under the Guarantees, the Guarantees must be modified so as to materially increase any or all of the obligations of the Guarantors, then the UPREIT shall not be required to become the replacement guarantor or to assume the obligations thereunder. If such lender does not consent to the transfer of the Guarantors’ liability under the Guarantees and the assumption by the UPREIT of the obligations thereunder, and regardless of whether such lender has consented to the transfer of the Member Interest, the UPREIT shall indemnify, defend and hold harmless the Guarantors from and against any Losses which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only with respect to Post-Closing Losses. If, under the loan documents evidencing and securing the Contributor Property Indebtedness encumbering the Property, consent of the lender thereunder is not required in order to transfer the Member Interest as contemplated under this Agreement, Contributor shall not be required to, seek such lender’s consent to the transfer of Guarantors’ liability under the Guarantees. In such case, the Guarantors shall remain as the Guarantors under the Guarantees, and the UPREIT shall indemnify and defend the Guarantors from and against any Losses which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only with respect to Post-Closing Losses.

Transfer of Guarantees. Acquiror and Contributor acknowledge that certain parties (the “Guarantors”), have delivered guarantees and/or indemnitees (the “Guarantees”), in connection with the Contributor POP Property Indebtedness encumbering the Property. Acquiror and Contributor agree that, as a part of the contribution of the Member Interest to the UPREIT, and to the extent possible, the UPREIT will assume the obligations of the Guarantors under the Guarantees. The If under the loan documents evidencing and securing the POP Property Indebtedness encumbering the Project, consent of the lender thereunder is required in order to transfer the Member Interest as contemplated under this Agreement, then, as a part of obtaining such consent, Contributor shall endeavor to also obtain the consent of such lender to the transfer of the Guarantees to, and the assumption of the obligations thereunder by, the UPREIT. If such lender consents to both (i) the transfer of the Member Interest as contemplated under this Agreement, and (ii) the transfer and assumption of the Guarantees and the obligations thereunder, then the UPREIT shall become the replacement guarantor under the Guarantees, and, regardless of whether the Guarantors are relieved and discharged of their liabilities and obligations under the Guarantees, the UPREIT shall indemnify and defend the Guarantors from and against any claims, causes of action, judgments, losses, costs, damages and expenses, including, without limitation, attorneys’ fees of counsel selected by the Guarantors and costs of litigation (collectively, the “Losses”) which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only if and to the extent that such Losses are suffered or incurred as a result of, or due to, or because of, acts or omissions first occurring from and after the Closing Date (collectively, “Post-Closing Losses”). Notwithstanding the foregoing, if such lender requires that, as a condition of granting its consent to such transfer of the Guarantors’ liability under the Guarantees, the Guarantees must be modified so as to materially increase any or all of the obligations of the Guarantors, then the UPREIT shall not be required to become the replacement guarantor or to assume the obligations thereunder. If such lender does not consent to the transfer of the Guarantors’ liability under the Guarantees and the assumption by the UPREIT of the obligations thereunder, and regardless of whether such lender has consented to the transfer of the Member Interest, the UPREIT shall indemnify, defend and hold harmless the Guarantors from and against any Losses which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only with respect to Post-Closing Losses. If, under the loan documents evidencing and securing the Contributor POP Property Indebtedness encumbering the Property, consent of the lender thereunder is not required in order to transfer the Member Interest as contemplated under this Agreement, Contributor shall not be required to, seek such lender’s consent to the transfer of Guarantors’ liability under the Guarantees. In such case, the Guarantors shall remain as the Guarantors under the Guarantees, and the UPREIT shall indemnify and defend the Guarantors from and against any Losses which the Guarantors may suffer or incur as a result of or in connection with the Guarantees, but only with respect to Post-Closing Losses.