|
200205320
<br />(d) I irantor has the right and is duly authorized to execute and perform " its ( )bligations under this Deed of Trust and these actions do not and
<br />shall not conflict with the provisions of any statute, regulation, ordinance, tide of'law, contract or other agreement which may be binding on
<br />Graf air at any time;
<br />(e) to action or proceeding is or shall be pending or threatened, which aright materially affect the Property; and
<br />(f) t ;rantor has not violated and shall not violate any statute, regulation, ordinance, rule of law, contract or other agreement (including, but not
<br />limit if to, those governing Hazardous Materials) which might materially affect the Property or Lender's rights or interest in the Property pursuant
<br />to tb s 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 Gr wor 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 decd of trust shall he a default under this Deed of Trust and shall entitle Lender to all rights and
<br />ternedie, contained herein or in the Obligations to which Lender would be entitled in Ilse event of any other default.
<br />4. TRA VSFERS OF THE PROPERTY OR BENEFICIALINTERESTS 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 die real property described in Schedule A, or any interest therein, or of all or any
<br />henefici: l interest in Bonower 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 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 :tockholders, members, or partners, as appropriate, and the extent of their respective ownership interests.
<br />5. ASS'':NMENT OF RENTS. In consideration of the Obligations which are secured by this Deed of Trust, Grantor absolutely assigns to Lender all
<br />Grantor estate, right, title, interest, claim and demand now owned or hereafter acquired in all existing and future leases of the Property (including
<br />extensio s, renewals and subleases), all agreements for use and occupancy of the Property (all such leases and agreements whether written or oral,
<br />are here fter referred to as the "Le st), a�( tar�rjt Of lessees' performance under the Leases, together with the immediate and continuing
<br />right to ollect and receive all of the�Ats,�it'brY2 p %, Yevenues, issues, profits and other, income of any nature now or hereafter due (including
<br />any inc, me 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 />liquidau t damages following default in any Lease, all proceeds payable under any policy of insurance covering loss of rents resulting from
<br />untenarn hility 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 rigl s 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 />hereafte, 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 Reu s. This assignment is recorded in accordance with applicable state law; the lien created by this assignment is intended to be specific,
<br />perfecte,'. 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 to default under the Obligations or this Deed of Trust, Lender grants Grantor a revocable license to collect all Rents from the Leases when
<br />true ant to use such proceeds in Grantor's business operations. However, Leader may at any time require Grantor to deposit all Rents into an
<br />:Iccount 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 nay 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 Le- Ier deems proper. Lender may proceed to collect and receive all Rents from the properly, and Lender shall have full power to make
<br />Ateratio renovations, repairs or replacements to the Property as Lender may deem proper. Lender may apply all Rents in Lender's sole discretion
<br />to paym nt of the Obligations or to the payment of the cost of such alterations, renovations, repairs and replacements and any expenses incident to
<br />taking : Id retaining possession of the Property periodically and the management and operation of the Property. Lender may keep the Property
<br />trroperl% insured and may discharge any taxes, charges, claims, assessments and other liens which may accrue. The expense and cost of these
<br />actions nay be paid from the Rents received, and any unpaid amounts shall he added to the principal of the Obligations. These amounts, together
<br />with oth a costs, shall become part of the Obligations secured by this Deed of Trust.
<br />4. LEP ;ES AND OTHER AGREEMENTS. Grantor shall not take or fail to take any action which may cause or permit the termination or the
<br />withhohl-ng of any payment in connection with any Lease pertaining to the Property. In addition, Grantor, without Lender's prior written consent, shall
<br />Trot: (a) �-ollect 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 tr 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 />terminal or cancel any Lease except for the nonpayment of any sum or other material breach by the other parry thereto. If Grantor receives at any
<br />time an written communication asserting a default by Grantor under a Lease or purporting to terminate or cancel any Lease, Grantor shall promptly
<br />forward :t copy of such communication (and any subsequent communications relating thereto) to Lender. All such Leases and the amounts due to
<br />f3rantor hereunder are hereby assigned to Lender as additional security for the Obligations.
<br />7. COP I,ECTIONOF INDEBTEDNESS FROM THIRDPARTY. 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 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 shall hold
<br />such in truments and other remittances in trust for Lender apart from its other property, endorse the instruments and other remittances to Lender,
<br />and im, tediately provide Lender with possession of the instruments and other it mittances. Lender shall be entitled, but not required, to collect (by
<br />legal pt Iceedings or otherwise), extend the time for payment, compromise, exchange or release any obligor or collateral, or otherwise settle any of
<br />the Ind, btedness 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 'terein shall cause Lender to he deemed a mortgagee -in- possession.
<br />8. USI 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 will, 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*- 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. LOS'i OR DAMAGE. Grantor shall bear the entire risk of any loss, theft, destri tion or damage (cumulatively "Loss or Damage ") to the Property or
<br />any pot Lion thereof from any cause whatsoever. In the event of any Loss or I tamage, Grantor shall, at the option of Lender, repair the affected
<br />Property to its previous condition or pay or cause to he 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 su -h companies as are 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 +-vent 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 />insumm a 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 in•:trument 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 Properly. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof.
<br />11. ZONING AND PRIVATECOVENANTS. Grantor shall not initiate or consent at 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 t,I 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 al,andoned without the prior written consent of Lender. Grantor will
<br />immedimely provide Lender with written notice of any proposed changes to the zoning laovisions 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. Allmonies 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 />Propert% .
<br />13. LENDER'S RIGHTTO COMMENCE OR DEFEND LEGALAC'TIONS. Grantor shall immediately provide Lender with written notice of any actual
<br />or thremened 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 />resultin!c therefrom. Nothing contained herein will prevent Lender from taking the actions described in this paragraph in its own name.
<br />14. INt1EMNIFICATION.Lender shall not assume or be responsible for the perNifilance of any of Grantor's obligations with respect to the Property
<br />under Iny circumstances. Grantor shall immediately provide Lender with wrin m notice of and indemnify and hold Lender and its shareholders,
<br />director :, 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 q(
<br />this Deed of Trust. � � Y
<br />I TNE31 m l0 John it. Harland Co. (9/10(98) (OW) 937.3799 Page 2 of 5 ._ —_
<br />
|