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200308465
<br />Borrower could not adequately and fully perform the covenants to be performed by Borrower in
<br />this Deed of Trust. The parties also agree that this Deed of Trust is an agreement for the making
<br />of loans and for the extending of debt financing or financial accommodations. No assumption of
<br />or assignment of this Deed of Trust shall be allowed in bankruptcy. Should an assumption of or
<br />assignment of this Deed of Trust be permitted in violation of this covenant, the parties agree that
<br />Lender will not have adequate assurance of performance unless and until Lender is allowed access
<br />to adequate financial and other information to satisfy itself that the trustee or proposed assignee is
<br />fully able to assume the financial and personal covenants of Borrower under this agreement, in full
<br />accordance with its terms. The parties further agree that the definition of the term "adequate
<br />assurance" as set forth in the United States Bankruptcy Code, as amended, shall be applicable
<br />directly or by analogy to any determination of adequate assurance in connection with this Deed of
<br />Trust.
<br />In the event Borrower becomes a debtor in bankruptcy, the debtor in possession or trustee
<br />shall not be permitted to use, sell or lease any of the Property, whether or not in the ordinary
<br />course of business, without providing adequate protection to Lender. The parties agree that the
<br />language in the United States Bankruptcy Code, as amended, shall be the definition of the term
<br />"adequate protection" in connection with any use, sale or lease of the Property. The cash
<br />payment referred to in that section shall mean the full payments required under the Note and all
<br />other indebtedness which this Deed of Trust secures.
<br />The parties agree that because of the extreme financial importance to Lender of this
<br />transaction, Lender will be irreparably harmed by any stay of its collection efforts or the exercise
<br />of its remedies under this Deed of Trust. In the event a plan of reorganization is proposed under
<br />Chapter 11 of the United States Bankruptcy Code, as amended, the parties also agree that the
<br />plan will be fair and equitable to Lender, as a secured creditor, only if Lender realizes under the
<br />plan the full payments required under the Note and all other indebtedness which this Deed of
<br />Trust secures.
<br />9. AMERICANS WITH DISABILITIES ACT. At its sole expense, Borrower shall
<br />cause the Property to be and remain in compliance with the Americans with Disabilities Act and
<br />all similar state and local laws, rules and regulations (hereafter "ADA ") during the term hereof. If
<br />the Property is remodeled or altered while this Deed of Trust is in effect, the Borrower shall have
<br />the work performed so that the Property continues to comply with the ADA. Borrower shall
<br />furnish to Lender, if requested, a written opinion from a licensed architect that the
<br />remodeling/alterations comply with the ADA. Borrower hereby warrants and represents to
<br />Lender that there are no pending or threatened claims by the Department of Justice or third
<br />parties relating to the ADA. Borrower hereby agrees to indemnify and hold harmless the Lender,
<br />its directors, officers, employees and agents, and any successor to Lender's interest, from and
<br />against any and all claims, damages, losses and liabilities arising in connection with the violation of
<br />the ADA. THE FOREGOING WARRANTIES AND REPRESENTATIONS , AND
<br />BORROWER'S OBLIGATIONS PURSUANT TO THE FOREGOING INDEMNITY, SHALL
<br />SURVIVE THE REPAYMENT OF THE NOTE AND THE RECONVEYANCE OF THIS
<br />DEED OF TRUST.
<br />10. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
<br />covenants and agreements contained in this Deed of Trust or in any other Loan Document, or if
<br />any action or proceeding is commenced which materially affects Lender's interest in the Property,
<br />including, but not limited to, eminent domain, insolvency, enforcement of laws or regulations, or
<br />arrangements or proceedings involving a bankrupt or decedent, then Lender at Lender's option,
<br />may make such appearances, disburse such sums and take such action as is necessary to protect
<br />Lender's interest, including, but not limited to, incurrence of attorneys' fees and entry upon the
<br />Property to make repairs.
<br />Any amounts disbursed by Lender pursuant to this Paragraph 10, with Interest thereon,
<br />shall become additional indebtedness of Borrower secured by this Deed of Trust. Unless
<br />Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice
<br />from Lender to Borrower requesting payment thereof, and shall bear interest from the date of
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