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counterclaim, defense or set off, (ii)enforce the performance of each and every obligation, term, covenant, condition
<br /> and agreement in the Leases by the tenants to be performed, (iii)notify Beneficiary of the occurrence of any default
<br /> under any Leases for non-residential use, and (iv)appear in and defend any action or proceeding arising under,
<br /> occurring out of, or in any manner connected with the Leases or the obligations, duties, or liabilities of Grantor or the
<br /> tenants thereunder. Without Beneficiary's written consent, Grantor will not collect or accept payment of any Rents from
<br /> the Collateral more than one(1) month prior to the due dates thereof; will not surrender or terminate any Lease for
<br /> non-residential use; and will not request or consent to the subordination of any Lease to any lien subordinate to this
<br /> Deed of Trust.
<br /> 5.6 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any duty
<br /> to produce Rents, Issues and Profits from the Project. Regardless of whether or not Beneficiary, in person or by agent,
<br /> takes actual possession of the Project, Beneficiary is not and shall not be deemed to be: (i)a "mortgagee in
<br /> possession" for any purpose; (ii)responsible for performing any of the obligations of the lessor under any Lease;
<br /> (iii)responsible for any waste committed by Lessees or any other parties, any dangerous or defective condition of the
<br /> Project, or any negligence in the management, upkeep, repair or control of the Project; or(iv)liable in any manner for
<br /> the Project or the use, occupancy, enjoyment or operation of all or any part of it, except for such matters as may arise
<br /> from the willful misconduct and bad faith of Beneficiary.
<br /> 6. RIGHTS AND DUTIES OF THE PARTIES.
<br /> 6.1 Performance of Secured Obligation. Grantor shall promptly pay and perform the
<br /> Secured Obligation in accordance with its terms.
<br /> 6.2 Representations and Warranties. Grantor represents and warrants that:
<br /> 6.2.1 Commercial Purposes. The Development Agreement and Amendment were
<br /> entered into for commercial or business purposes, excluding agricultural, timber, and grazing purposes, and not for
<br /> personal,family or household purposes.
<br /> 6.2.2 Title to Land and Improvements. Grantor holds good and indefeasible fee
<br /> simple title to all of the Land and Improvements, subject only to such exceptions and encumbrances as have been
<br /> approved in writing by Beneficiary(the"Permitted Exceptions"), and Grantor has or will have good title to all portions
<br /> of the Collateral other than the Land and Improvements.
<br /> 6.2.3 Title to Personal Property. Grantor owns any portion of the Collateral that is
<br /> personal property free and clear of any security agreements, reservations of title, or conditional sales contracts, and
<br /> there is no financing statement affecting such personal property on file in any public office other than in Beneficiary's
<br /> favor.
<br /> 6.2.4 Right to Encumber/Priority. Grantor has the full and unlimited power, right,
<br /> and authority to encumber the Collateral and assign the Rents, Issues and Profits and Leases. Upon recording of this
<br /> Deed of Trust and filing of a UCC Financing Statement with respect to any portion of the Collateral that is determined
<br /> to be personal property, this Deed of Trust will create a first and prior lien on and security interest in the Collateral that
<br /> is subject and subordinate to no other liens except for the Permitted Exceptions.
<br /> 6.3 Taxes and Assessments. Grantor shall pay or cause to be paid when due, all general
<br /> real and personal property taxes,special and supplemental real and personal property taxes and assessments, license
<br /> fees, license taxes, levies, charges, penalties, or other taxes or similar impositions imposed by any public or quasi-
<br /> public authority or utility company that are or may become a lien upon the Collateral. Grantor shall also pay when due
<br /> all real property taxes, assessments, levies and charges imposed by any public authority upon Beneficiary by reason of
<br /> its interest in the Collateral created hereby. All of the foregoing taxes, assessments and other charges payable by
<br /> Everett Deed of Trust—Lot 1 Page 7
<br /> ND:19652.017 4822-1832-5829v1
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