|
200504312
<br />Code of 1978 shall be applicable directly or by analogy to any determination of adequate
<br />assurance in connection with this Deed of Trust.
<br />In the event Trustor becomes a debtor in bankruptcy, the debtor in possession or trustee shall not
<br />be permitted to use, sell or lease any of the Subject Property, whether or not in the ordinary
<br />course of business, without providing adequate protection to Beneficiary. The parties agree that
<br />the language in Section 361 of the Bankruptcy Code of 1978 shall be the definition of the term
<br />"adequate protection" in connection with any use, sale or lease of the Subject 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 Beneficiary of this
<br />transaction, Beneficiary will be irreparably harmed by any stay of its collection efforts or the
<br />exercise of its remedies under this Deed of Trust. In the event a plan of reorganization is
<br />proposed under Chapter 11 of the Bankruptcy Code of 1978, the parties also agree that the plan
<br />will be fair and equitable to Beneficiary, as a secured creditor, only if Beneficiary realizes under
<br />the 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, Trustor shall cause the Subject
<br />Property to be and remain in compliance with all applicable provisions of the Americans with
<br />Disabilities Act and all similar state and local laws, rules and regulations (hereafter "ADA ")
<br />during the term hereof. If the Subject Property is remodeled or altered while this Deed of Trust
<br />is in effect, the Trustor shall have the work performed so that the Subject Property continues to
<br />comply with the ADA. Trustor shall furnish to Beneficiary, if requested, a written opinion from
<br />a licensed architect that the remodeling /alterations comply with the ADA. Trustor hereby
<br />warrants and represents to Beneficiary that there are no pending or threatened claims by the
<br />Department of Justice or third parties relating to the ADA. Trustor hereby agrees to indemnify
<br />and hold harmless the Beneficiary, its past, present, and future directors, officers, employees and
<br />agents, and any successor to Beneficiary's interest, from and against any and all claims, damages,
<br />losses and liabilities arising in connection with any violation of the ADA. THE FOREGOING
<br />WARRANTIES AND REPRESENTATIONS, AND TRUSTOR'S OBLIGATIONS PURSUANT
<br />TO THE FOREGOING INDEMNITY, SHALL SURVIVE THE REPAYMENT OF THE NOTE,
<br />THE RECONVEYANCE OF THIS DEED OF TRUST, AND JUDICIAL AND NON - JUDICIAL
<br />FORECLOSURE OR CONVEYANCE OF THE SUBJECT PROPERTY BY DEED IN LIEU
<br />OF FORECLOSURE.
<br />10. REPRESENTATIONS AND WARRANTIES OF TRUSTOR. In order to induce Beneficiary to deliver
<br />this Deed of Trust and perform hereunder, Trustor makes the following representations and
<br />warranties to Beneficiary, which representations and warranties shall remain in effect throughout
<br />the term of this Deed of Trust, and shall survive and shall be unaffected by any investigations,
<br />inspections or inquiries made by Beneficiary, the recording of any of the Loan Documents, or the
<br />performance by Beneficiary and Trustor hereunder:
<br />(a) Organization: Trustor is duly organized, validly existing and in good standing as
<br />a limited liability company in accordance with the laws of the State of Nebraska,
<br />is qualified, in good standing, and authorized to do business in each of the
<br />jurisdictions in which the nature of its activities or properties require such
<br />authorization, and has full power and authority to own its properties, carry on
<br />this business as now being conducted, and to enter into, deliver and perform
<br />under the Loan Documents.
<br />(b) Authorization: The execution and delivery of the Loan Documents and the
<br />satisfaction of Trustor's obligations hereunder have been duly authorized by
<br />Trustor's managers and members in accordance with Governing Law. Each of
<br />the Loan Documents, upon execution and delivery to Beneficiary, constitutes a
<br />legally valid and binding agreement of Trustor, enforceable against Trustor in
<br />accordance with its terms, except as such enforcement may be qualified or
<br />limited by bankruptcy, insolvency, or other similar laws affecting creditors'
<br />rights in general.
<br />(c) No Contravention: The execution, delivery, and performance of the Loan
<br />Documents by Trustor will not, immediately or with the passage of time, the
<br />giving of notice or otherwise, result in (i) the breach of, or constitute a default
<br />under, or in any manner release any party thereto from, or accelerate any
<br />7
<br />
|