|
200408871
<br />Property. "Borrower," as that term is used herein, includes Borrower's successors, assigns, agents, servants,
<br />employees, and owners.
<br />8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants and
<br />agreements contained in this Instrument, or if any action or proceeding is commenced which affects the Property or
<br />title thereto or the interest of Lender therein, including, but not limited to, eminent domain, insolvency, building
<br />code enforcement, or arrangements or proceedings involving a bankruptcy or decedent, then Lender, at Lender's
<br />option, may make such appearances, disburse such sums and take such action as Lender deems necessary, in its sole
<br />discretion, to protect Lender's interest, including, but not limited to, (a) disbursement of attorneys' fees, (b) entry
<br />upon the Property to make repairs or otherwise to protect the same as security for the indebtedness secured by this
<br />Instrument, (c) procurement of satisfactory insurance as provided in this Instrument, and (d) if this Instrument is on
<br />a leasehold, exercise of any option to renew or extend the ground lease on behalf of Borrower and the curing of any
<br />default of Borrower in the terms and conditions of the ground lease.
<br />Any amounts disbursed by Lender pursuant to this paragraph shall become additional indebtedness of
<br />Borrower secured by this Instrument. Unless Borrower and Lender agree to other terms of payment, such amounts
<br />shall be immediately due and payable and shall bear interest from the date of disbursement at the default rate as
<br />provided in the Note, unless collection from Borrower of interest at such rate would be contrary to applicable law, in
<br />which event such amounts shall bear interest at the highest rate which may be collected from Borrower under
<br />applicable law. Borrower hereby covenants and agrees that Lender shall be subrogated to the lien of any mortgage
<br />or other lien discharged, in whole or in part, by any advances made by Lender hereunder. Nothing contained in this
<br />paragraph shall require Lender to incur any expense or take any action hereunder.
<br />9. INSPECTION. Lender may make or cause to be made reasonable entries upon and inspections
<br />of the Property at any time at Lender's option. Lender may at its option at any time, require Borrower, or Lender
<br />may arrange, all at the sole cost and expense of Borrower, to employ or for the employment of an independent and
<br />qualified environmental engineer and inspector, acceptable to Lender, to determine if there is any asbestos,
<br />petroleum, radon or hazardous material or substance above, in, on, under or from the Property. Such cost and
<br />expense shall, if not paid by Borrower, become additional indebtedness secured by this Instrument. The failure of
<br />Borrower to promptly pay the cost and expense of the same or to cooperate with and permit such inspection shall
<br />constitute a default under this Instrument and the other Loan Documents.
<br />10. BOOKS AND RECORDS. Borrower shall keep and maintain at all times at Borrower's address
<br />stated herein, or such other place as Lender may approve in writing, complete and accurate books of account and
<br />records, in accordance with generally accepted accounting principles, consistently applied, adequate to reflect
<br />correctly the results of the operation of the Property, and copies of all written contracts, budgets, change orders,
<br />leases and other instruments shall be subject to examination and inspection at any reasonable time by Lender.
<br />Within fifteen (15) days after Lender's request, Borrower shall furnish to Lender a balance sheet, a statement of
<br />income and expenses of the Property and a statement of changes in financial position, each in reasonable detail and
<br />certified by Borrower and, if Lender shall require (but not more than once each calendar year), by an independent
<br />certified public accountant. Borrower shall furnish, within seven (7) days from Lender's request, a rent schedule for
<br />the Property, certified by Borrower, showing the name of each tenant and, for each tenant, the space occupied, the
<br />lease expiration date, the rent payable and the rent paid. In addition to the foregoing, Borrower shall furnish to
<br />Lender automatically and without the need for request, within one hundred twenty (120) days following the close of
<br />Borrower's fiscal year, a statement of income and expenses with respect to the Property for the prior fiscal year, a
<br />current rent roll, current financial statements of Borrower and each guarantor, and Borrower's and each guarantor's
<br />most recent federal tax return, all certified as true and correct. All financial statements and other documents or
<br />records pursuant to this paragraph shall be provided at Borrower's sole expense.
<br />11. CONDEMNATION. Borrower shall promptly notify Lender of any action or proceeding relating
<br />to any condemnation or other taking, whether direct or indirect or whether by eminent domain or otherwise, of the
<br />Property, or part thereof, and Borrower shall appear in and prosecute any such action or proceeding unless otherwise
<br />directed by Lender in writing. Borrower authorizes Lender, at Lender's option, as attorney -in -fact for Borrower, to
<br />commence, appear in and prosecute in Lender's or Borrower's name, any action or proceeding relating to any such
<br />condemnation or other taking of the Property, and to settle or compromise any claim in connection with such
<br />condemnation or other taking. The proceeds of any award, payment or claim for damages, direct or consequential,
<br />156698 -1 -6-
<br />
|