|
.� .y , . � . ;� 2'0000�287 � � �
<br /> (d) Grantor has the right and is duly au#horized to execute and perform its Obligations under this Deed of Trust and these actions do not and
<br /> shall not conflict with the provisions of any statute, regulation, ordinance, rule of law, contract or other agreement which may be binding 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 law, 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 /> forth 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 pertorm all obligations required,under such deeds of trust and the indebtedness secured thereby
<br /> and further agrees that a defauit under any prior deed of trust shall be a defauit under this Deed of Trust and shall entitie 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 BORROWERS. 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 ail 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 legai entity), Lender may,at its option,deciare the outstanding principal balance of the Obligations plus accrued interest
<br /> thereon immediately due and payable. At 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�"Laase$",�,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,inoome,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, percentage rents, parking or common area maintenance contributions, tax and insurance contributions, deficiency rents,
<br /> liquidated damages following default in any Lease, all proceeds payable under any policy of insurance covering loss of rents 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,ail 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 coilectively 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 applicabfe state Iaw; 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 revocabie license to collect ail 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 shail have full power to make
<br /> alterations,renovations,repairs or replacements to the Property as Lender may deem proper. Lender may apply ail 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 shail be added to the principal of the Obligations. These amounts,together
<br /> with other costs,shall become part of the Obtigations 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 /> forward 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 tor 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 suthorities 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 Indebtedness 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 or other remittances with respect to the Indebtedness following the giving of such notification or if the instruments or
<br /> other remittances constitute the prepayment of any Indebtedness or the payment of any insurance or condemnation proceeds, Grantor shalt 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 coliateral, or otherwise settle any of
<br /> the Indebtedness whether or not an Event ofoDefault exists under this Deed of Trust. Lender shall not be liabie 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 /> 8. 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 Iaw 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 shali, 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�Le acceptable to Lender in its sole discretion. The insurance policies shall require the insurance company to provide
<br /> Lender with at least o 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 shali 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 directiy 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. My 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, Grantor shall not cause or permit such use to be discontinued or abandoned without the prior 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 (inciuding 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 LEGAL ACTIONS. 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 /> resuiting therefrom. Nothing contained herein wiil 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 har�nless 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 laims at rantor's cost. rantor's obligation to indemnify Lender under this paragraph shall survive the termination,release or foreclosure of
<br />
|