|
200112869
<br />other act or omission of Assignee in managing the Property, unless such loss is caused by the gross
<br />negligence, willful misconduct or bad faith of Assignee. Assignee shall not be obligated to perform or
<br />discharge nor does Assignee undertake to perform or discharge any obligation, duty or liability under the
<br />Leases or under or by reason of this Assignment and Assignor agrees to indemnify Assignee for, and to
<br />hold Assignee harmless from, any liability, loss or damage which may be incurred under the Leases or
<br />under or by reason of this Assignment and from any claims and demands which may be asserted against
<br />Assignee by reason of any alleged obligations or undertakings to perform or discharge any of the terms,
<br />covenants or agreements contained in the Leases or in operation of the Property, unless such liability, loss
<br />or damage is caused by the gross negligence, willful misconduct or bad faith of Assignee. Should Assignee
<br />incur any such liability under the Leases or under or by reason of this Assignment or in defense of any such
<br />claims or demands, the amount thereof, including costs, expenses, and reasonable attorneys' fees, shall be
<br />reimbursed by Assignor to Assignee immediately upon demand, and upon failure of Assignor to make such
<br />reimbursement on the date of such demand, the unpaid portion thereof, while still immediately due and
<br />payable, shall bear interest at the default rate of interest provided in the Note until paid, and the Note shall
<br />be deemed to be in default due to such nonpayment. This Assignment shall not operate to place
<br />responsibility for the control, care, maintenance, or repair of the Property upon Assignee, nor shall it
<br />operate to make Assignee responsible or liable for any waste committed on the Property by any lessees or
<br />any other parties, or for any dangerous or defective condition of the Property, or for any negligence in the
<br />management, upkeep, repair or control of the Property.
<br />3. Termination/Lessee Directives. Upon payment in full of the principal, interest and all
<br />other indebtedness evidenced by the Note and the Deed of Trust, this Assignment shall cease, terminate and
<br />be of no further effect. Assignor authorizes each and every lessee named in a Lease or any other or future
<br />lessee or occupant of the Property or any part thereof, upon receipt of written notice from Assignee, to pay
<br />to Assignee all rents, income and issues accruing under the Leases or from the Property, and to continue to
<br />do so until otherwise notified in writing by Assignee.
<br />4. Absolute Assignment. Subject only to the provisions of Paragraph 3 of this Assignment,
<br />no action undertaken by Assignee with respect to any of the obligations of Assignor evidenced by the Note
<br />and the Deed of Trust, to any security or guarantee given for the payment or performance thereof, or to any
<br />other document or instrument evidencing or relating to said obligations shall in any manner affect, impair
<br />or prejudice any of Assignee's rights and privileges under this Assignment or discharge, release or modify
<br />any of Assignor's duties or obligations hereunder. This Assignment is intended by Assignor and Assignee
<br />to create, and shall be construed as creating, an absolute assignment unto Assignee, subject only to the
<br />license, terms and provisions hereof, and not as an assignment as security for the performance of the
<br />obligations evidenced by the Note and the Deed of Trust or any other indebtedness of Assignor.
<br />5. Default by Borrowers. A default by a Borrower under the Note, any Deed of Trust or
<br />Mortgage or any other instrument or document executed by Borrowers and delivered to Assignee in
<br />connection with the loan evidenced by the Note shall constitute a default under this Assignment.
<br />6. Warranties of Assignor. Assignor warrants to Assignee, each of which warranties shall
<br />remain in full force and effect until all obligations of Assignor to Assignee under the Note and Deed of
<br />Trust have been fulfilled, that:
<br />a. Assignor is the record owner and holder of legal title to the Property and to the
<br />improvements located on the Property.
<br />b. Assignor has good and clear title to the Leases, rents, income and issues hereby
<br />assigned and good right to assign same, and no other person, firm or entity has any right, title or
<br />interest therein.
<br />C. There has been no prior assignment of the Leases, rents, income and issues which is
<br />now in effect.
<br />d. The Leases are in full force and effect in accordance with their terms, and constitute
<br />the only outstanding Leases affecting the Property.
<br />e. The Leases are unmodified except as specifically revealed to Assignee in writing.
<br />f. Assignor is not in default or in breach of any of the Leases, and has not performed
<br />any act or failed to perform any act which over the passage of time would result in a default or
<br />breach of any of the Leases.
<br />59354 -1 2
<br />
|