|
200��00�-19 �
<br /> (d) Grantor has the right and is duly authorized to execute and perform its Obligations under this Deed of Trust and these acfions do not and
<br /> shall not conflict with the provisions of any statUte, regulation; ordinance, rule of law; co�tract or other agreement which m�N be bi�.ding on
<br /> Grantor at any time;
<br /> (e) No action or proceeding is or shall be pending or threatened which might materially affect the Property;and
<br /> (f) Grantor has not violated and shall not violate any statute, regulation, ordinance, rule of I'�w, contract or other agreement (including, but not
<br /> limited to,those governing Hazardous Materials) which might materially affect the Property or Lender's rights or interest in the Property pursuant
<br /> to this Deed of Trust.
<br /> 3. PRIOR DEEDS OF TRUST. Grantor represents and warrants that there are no prior deeds of trust affecting any part of the Property except as set
<br /> foRh on Schedule B attached to this Deed of Trust,which Grantor agrees to pay and perform in a timely manner. If there are any prior deeds of trust
<br /> • then Grantor agrees to pay all amounts owed, and perform all obligations required, under such deeds of trust and the indebtedness secured thereby
<br /> and further agrees that a default under any prior deed of trust shall be a default under this DeQd of Trust and shall entitle Lender to all rights and
<br /> remedies contained herein or in the Obligations to which Lender would be entitled in the event of any other default.
<br /> 4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN GRANTORS OR BORRbWERS. In the event of a sale,conveyance, lease,
<br /> contract for deed or transfer to any person of all or any part of the real property described in Schedule A,or any interest therein, or of all or any
<br /> beneficial interest in Borrower or Grantor (if Borrower or Grantor is not a natural person or persons but is a corporation, limited liability company,
<br /> partnership, trust, or other legal entity), Lender may, at its option, declare the outstanding principal balance of the Obligations plus accrued interest
<br /> thereon immediately du�and pay�b�Q �l�t�Lender's request, Grantor or Borrower,as the case may be, shall furnish a complete statement setting forth
<br /> all of its stockholders,members,or partners;'as appropriate,and the extent of their respective ownership interests.
<br /> 5. ASSIGNMENT OF RENTS. In consideration of the Obligations which are secured by this Deed of Trust, Grantor absolutely assigns to Lender all
<br /> Grantor's estate, right, title, interest, claim and demand now owned or hereafter acquired in all existing and future leases of the Property (including
<br /> extensions, renewals and subleases),all agreements for use and occupancy of the Property (all such leases and agreements whether written or oral,
<br /> are hereafter referred to as the "Leases"),and all guaranties of lessees'performance under the Leases,together with the immediate and continuing
<br /> right to collect and receive all of the rents, income, receipts, revenues,issues,profits and other income of any nature now or hereafter due (including
<br /> any income of any nature coming due during any redemption period) under the Leases or from or arising out of the Property, including minimum
<br /> rents, additional rents,�ercentage rents,_�rking or common area_maintenance_contribution�„ tax and insurance_.contributions, deficiencv r_g�,ts,
<br /> liquidated damages following default in any Lease, all proceeds payable under any policy of insurance covering loss of �ents resulting from
<br /> untenantability caused by destruction or damage to the Property, all proceeds payable as a result of a lessee's exercise of an option to purchase the
<br /> Property, all proceeds derived from the termination or rejection of any Lease in a bankruptcy or other insolvency proceeding, and all proceeds from
<br /> any rights and claims of any kind which Grantor may have against any lessee under the Leases or any occupants of the Property (all of the above are
<br /> hereafter collectively referred to as the "Rents"). This assignment is subject to the right, power and authority given to the Lender to collect and apply
<br /> the Rents. This assignment is recorded in accordance with applicable state law; the lien created by this assignment is intended to be specific,
<br /> perfected, and choate upon the recording of this Deed of Trust, all as provided by applicable state law as amended from time to time. As long as
<br /> there is no default under the Obligations or this Deed of Trust, Lender grants Grantor a revocable license to collect all Rents from the Leases when
<br /> due and to use such proceeds in Grantor's business operations. However, Lender may at any time require Grantor to deposit all Rents into an
<br /> account maintained by Grantor or Lender at Lender's institution. Upon default in the payment of, or in the performance of, any of the Obligations,
<br /> Lender may at its option take possession of the Property and have,hold, manage, lease and operate the Property on terms and for a period of time
<br /> that Lender deems proper. Lender may proceed to collect and receive all Rents from the property, and Lender shall have full power to make
<br /> alterations, renovations, repairs or replacements to the Property as Lender may deem proper. Lender may apply all Rents in Lender's sole discretion
<br /> to payment of the Obligations or to the payment of the cost of such alterations, renovations, repairs and replacements and any expenses incident to
<br /> taking and retaining possession of the Property periodically and the management and operation of the Property. Lender may keep the Property
<br /> properly insured and may discharge any taxes, charges, claims, assessments and other liens which may accrue. The expense and cost of these
<br /> actions may be paid from the Rents received, and any unpaid amounts shall be added to the principal of the Obligations. These amounts, together
<br /> with other costs,shall become part of the Obligations secured by this Deed of Trust.
<br /> 6. LEASES AND OTHER AGREEMENTS. Grantor shall not take or fail to take any action which may cause or permit the termination or the
<br /> withholding of any payment in connection with any Lease pertaining to the Property. In addition, Grantor,without Lender's prior written consent, shall
<br /> not: (a) collect any monies payable under any Lease more than one month in advance; (b) modify any Lease; (c) assign or allow a lien, security
<br /> interest or other encumbrance to be placed upon Grantor's rights, title and interest in and to any Lease or the amounts payable thereunder; or (d)
<br /> terminate or cancel any Lease except for the nonpayment of any sum or other material breach by the other party thereto. If Grantor receives at any
<br /> time any written communication asserting a default by Grantor under a Lease or purporting to terminate or cancel any Lease,Grantor shall promptly
<br /> fonvard a copy of such communication (and any subsequent communications relating thereto) to Lender. All such Leases and the amounts due to
<br /> Grantor thereunder are hereby assigned to Lender as additional security for the Obligations.
<br /> 7. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be entitled to notify or require Grantor to notify any third party (including,
<br /> but not limited to, lessees,licensees, governmental authorities and insurance companies) to pay Lender any indebtedness or obligation owing to
<br /> Grantor with respect to the Property (cumulatively "Indebtedness") whether or not a default exists under this Deed of Trust. Grantor shall diligently
<br /> collect the Indebtednes§ owing to Grantor from these third parties until the giving of such notification. In the event that Grantor possesses or receives
<br /> possession of any instruments ar other remittanCes u�ith respect to the lndebtedness folLowing ihe giving of such noiification or if the instruments�r
<br /> other remittances constitute the prepayment of any Indebtedness or the payment of any insurance or condemnation proceeds, Grantor shall hold
<br /> such instruments and other remittances in trust for Lender apart from its other property, endorse the instruments and other remittances to Lender,
<br /> and immediately provide Lender with possession of the instruments and other remittances. Lender shall be entitled, but not required, to collect (by
<br /> legal proceedings or otherwise), extend the time for payment, compromise, exchange or release any obligor or collateral, or otherwise settle any of
<br /> the Indebtedness whether or not an Event of Default exists under this Deed of Trust. Lender shall not be liable to Grantor for any action, error,
<br /> mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Notwithstanding the foregoing,
<br /> nothing herein shall cause Lender to be deemed a mortgagee-in-possession.
<br /> S. USE AND MAINTENANCE OF PROPERTY. Grantor shall take all actions and make any repairs needed to maintain the Property in good
<br /> condition. Grantor shall not commit or permit any waste to be committed with respect to the Property. Grantor shall use the Property solely in
<br /> compliance with applicable law and insurance policies. Grantor shall not make any alterations, additions or improvements to the Property without
<br /> Lender's prior written consent. Without limiting the foregoing, all alterations, additions and improvements made to the Property shall be subject to
<br /> the beneficial interest belonging to Lender,shall not be removed without Lender's prior written consent,and shall be made at Grantor's sole expense.
<br /> 9. LOSS OR DAMAGE. Grantor shall bear the entire risk of any loss,theft, destruction or damage (cumulatively "Loss or Damage")to the Property or
<br /> any portion thereof from any cause whatsoever. In the event of any Loss or Damage, Grantor shall, at the option of Lender, repair the affected
<br /> Property to its previous condition or pay or cause to be paid to Lender the decrease in the fair market value of the affected Property.
<br /> 10. INSURANCE. The Property will be kept insured for its full insurable value (replacement cost) against all hazards including loss or damage
<br /> caused by flood, earthquake, tornado and fire,theft or other casualty to the extent required by Lender. Grantor may obtain insurance on the Property
<br /> from such companies as��e acceptable to Lender in its sole discretion. The insurance policies shall require the insurance company to provide
<br /> Lender with at least days' written notice before such policies are altered or cancelled in any manner. The insurance policies shall
<br /> name Lender as a loss payee and provide that no act or omission of Grantor or any other person shall affect the right of Lender to be paid the
<br /> insurance proceeds pertaining to the loss or damage of the Property. In the event Grantor fails to acquire or maintain insurance, Lender (after
<br /> providing notice as may be required by law) may in its discretion procure appropriate insurance coverage upon the Property and the insurance cost
<br /> shall be an advance payable and bearing interest as described in Paragraph 23 and secured hereby. Grantor shall furnish Lender with evidence of
<br /> insurance indicating the required coverage. Lender may act as attorney-in-fact for Grantor in making and settling claims under insurance policies,
<br /> cancelling any policy or endorsing Grantor's name on any draft or negotiable instrument drawn by any insurer. All such insurance policies shall be
<br /> immediately assigned, pledged and delivered to Lender as further security for the Obligations. In the event of loss,Grantor shall immediately give
<br /> Lender written notice and Lender is authorized to make proof of loss. Each insurance company is directed to make payments directly to Lender
<br /> instead of to Lender and Grantor. Lender shall have the right, at its sole option, to apply such monies toward the Obligations or toward the cost of
<br /> rebuilding and restoring the Property. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof.
<br /> 11. ZONING AND PRIVATE COVENANTS. Grantor shall not initiate or consent to any change in the zoning provisions or private covenants affecting
<br /> the use of the Property without Lender's prior written consent. If Grantor's use of the Property is or becomes a nonconforming use under any zoning
<br /> provision, GrantQr_shall not cause or permit such usa ta be diseantinaed or abandoned-wlthout the p�r�written consent of Lender. Grantor will
<br /> immediately provide Lender with written notice of any proposed changes to the zoning provisions or private covenants affecting the Property.
<br /> 12. CONDEMNATION. Grantor shall immediately provide Lender with written notice of any actual or threatened condemnation or eminent domain
<br /> proceeding pertaining to the Property. All monies payable to Grantor from such condemnation or taking are hereby assigned to Lender and shall be
<br /> applied first to the payment of Lender's attorneys' fees, legal expenses and other costs (including appraisal fees) in connection with the
<br /> condemnation or eminent domain proceedings and then, at the option of Lender, to the payment of the Obligations or the restoration or repair of the
<br /> Property.
<br /> 13. LENDER'S RIGHT TO COMMENCE OR DEFEND LEGALACTIONS. Grantor shall immediately provide Lender with written notice of any actual
<br /> or threatened action, suit,or other proceeding affecting the Property. Grantor hereby appoints Lender as its attorney-in-fact to commence, intervene
<br /> in, and defend such actions, suits,or other legal proceedings and to compromise or settle any claim or controversy pertaining thereto. Lender shall
<br /> not be liable to Grantor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages
<br /> resulting therefrom. Nothing contained herein will prevent Lender from taking the actions described in this paragraph in its own name.
<br /> 14. INDEMNIFICATION. Lender shall not assume or be responsible for the performance of any of Grantor's obligations with respect to the Property
<br /> under any circumstances. Grantor shall immediately provide Lender with written notice of and indemnify and hold Lender and its shareholders,
<br /> directors, officers, employees and agents harmless from all claims, damages, liabilities (including attorneys' fees and legal expenses), causes of
<br /> action, actions, suits and other legal proceedings (cumulatively "Claims") pertaining to the Property (including, but not limited to, those involving
<br /> Hazardous Materials). Grantor, upon the request of Lender, shall hire legal counsel to defend Lender from such Claims, and pay the attorneys' fees,
<br /> legal expenses and other costs incurred in connection therewith. In the alternative, Lender shall be entitled to employ its own legal counsel to defend
<br /> such Claims at Grantor's cost. Grantor's obligation to indemnify Lender under this paragraph shall survive the termination, release or foreclosure of
<br /> this Deed of Trust. �
<br />
|