|
<br />200511357
<br />
<br />any declaration of covenants and restrictions; or (e) join in any extension agreement or any agreement
<br />subordinating the lien or charge of this Security Instrument. Nothing contained in the immediately preceding
<br />sentence shall be construed to limit, impair or otherwise affect the rights of Borrower in any respect. Except
<br />as may otherwise be required by applicable law, Trustee or Lender may from time to time apply to any court
<br />of competent jurisdiction for aid and direction in the execution of the trusts hereunder and the enforcement of
<br />the rights and remedies available hereunder, and Trustee or Lender may obtain orders or decrees directing or
<br />confirming or approving acts in the execution of said trusts and the enforcement of said remedies. Trustee
<br />has no obligation to notify any party of any pending sale or any action or proceeding (including, without
<br />limitation, actions in which Borrower, Lender or Trustee shall be a party) unless held or commenced and
<br />maintained by Trustee under this Security Instrument. Trustee shall not be obligated to perform any act
<br />required of it hereunder unless the performance of the act is requested in writing and Trustee is reasonably
<br />indemnified and held harmless against loss, cost, liability and expense.
<br />
<br />6.17 COMPENSATION OF TRUSTEE. Borrower shall pay to Trustee reasonable compensation and
<br />reimbursement for services and expenses in the administration of this trust, including, without limitation,
<br />reasonable attorneys' fees. Borrower shall pay all indebtedness arising under this Section immediately upon
<br />demand by Trustee or Lender together with interest thereon from the date the indebtedness arises at the rate of
<br />interest then applicable to the principal balance of the Note as specified therein.
<br />
<br />6.18 EXCULPATION. Lender shall not directly or indirectly be liable to Borrower or any other person as a
<br />consequence of: (a) the exercise of the rights, remedies or powers granted to Lender in this Security
<br />Instrument; (b) the failure or refusal of Lender to perform or discharge any obligation or liability of Borrower
<br />under any agreement related to the Property or under this Security Instrument; or (c) any loss sustained by
<br />Borrower or any third party resulting from Lender's failure to lease the Property after a Default (hereafter
<br />defined) or from any other act or omission of Lender in managing the Property after a Default unless the loss
<br />is caused by the willful misconduct and bad faith of Lender and no such liability shall be asserted or enforced
<br />against Lender, all such liability being expressly waived and released by Borrower.
<br />
<br />6.19 INDEMNITY. Without in any way limiting any other indemnity contained in this Security Instrument,
<br />Borrower agrees to defend, indemnify and hold harmless Trustee and Lender Group from and against any
<br />claim, loss, damage, cost, expense or liability directly or indirectly arising out of: (a) the making of the Loan,
<br />except for violations of banking laws or regulations by Lender Group; (b) this Security Instrument; (c) the
<br />execution of this trust or the performance of any act required or permitted hereunder or by law; (d) any failure
<br />of Borrower to perform Borrower's obligations under this Security Instrument or the other Loan Documents;
<br />(e) any alleged obligation or undertaking on Lender Group's part to perform or discharge any of the
<br />representations, warranties, conditions, covenants or other obligations contained in any other document
<br />related to the Property; (f) any act or omission by Borrower or any contractor, agent, employee or
<br />representative of Borrower with respect to the Property; or (g) any claim, loss, damage, cost, expense or
<br />liability directly or indirectly arising out of: (i) the use, generation, manufacture, storage, treatment, release,
<br />threatened release, discharge, disposal, transportation or presence of any Hazardous Materials which are
<br />found in, on, under or about the Property (including, without limitation, underground contamination); or (ii)
<br />the breach of any covenant, representation or warranty of Borrower under Sections 5.I(p), 5.1( q), 5.1(r), or
<br />6.2 above. The foregoing to the contrary notwithstanding, this indemnity shall not include any claim, loss,
<br />damage, cost, expense or liability directly or indirectly arising out of the gross negligence or willful
<br />misconduct of any member of Lender Group or Trustee or any claim, loss, damage, cost, expense or liability
<br />incurred by Lender Group or Trustee arising from any act or incident on the Property occurring after the full
<br />reconveyance and release of the lien of this Security Instrument on the Property, or with respect to the matters
<br />set forth in clause (g) above, any claim, loss, damage, cost, expense or liability incurred by Lender Group
<br />resulting from the introduction and initial release of Hazardous Materials on the Property occurring after the
<br />transfer of title to the Property at a foreclosure sale under this Security Instrument, either pursuant to judicial
<br />decree or the power of sale, , or by deed in lieu of such foreclosure. This indemnity shall include, without
<br />limitation: (aa) all consequential damages (including, without limitation, any third party tort claims or
<br />governmental claims, fines or penalties against Trustee or Lender Group); (bb) all court costs and reasonable
<br />attorneys' fees (including, without limitation, expert witness fees) paid or incurred by Trustee or Lender
<br />Group; and (cc) the costs, whether foreseeable or unforeseeable, of any investigation, repair, cleanup or
<br />detoxification of the Property which is required by any governmental entity or is otherwise necessary to
<br />
<br />19
<br />
<br />1244250.5
<br />
|