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HomeMy WebLinkAbout1146 Instrument and the Nate arc dec~larcd to be severable. In the tveM that any applica~ law licaiurr~ tlt0arnouat of interest or other charges permitted to be collected from Borrower is interpreted so that nay charge provided for is this Instrument or in the Note, whether considered separately or together with other charges levied in tnnrtectiart with this Instrument aced the Note, violates such law, and Borrower is entitled to the benefit of such law, such charge is hereby reduced to the extent necessary ro eliminate such violation. The amo+tnts, if any, previously paid to Leader in excess of the amounts payable to Lender pursuant w such charges as reduced shall be applied by Ltnder to reduce the printapal of the indebtedness evidenced by the Note. For the purpose of determining whether any applicable law Grafting the amount of wterrst or other charges permitted to be collected from Borrower has been violated, all indebtedness which is secured by this Instrumem or evidenced by the Note and which constitutes interest, u well u all other charges levied in coaaectionn with such indebtedness which constitute intereu, shall be deemed to be allocated and spread over the stated term of the Note. Unless otherwise required by applicable law, such allocation and spreading shall be eQetyed is such a manner that the me of interest computed thereby is uniform throughout the sated term of the Note. ZJ, WAIVER OF STATUTE OF WMITATIONS Borrower hereby waives the right to assert nay statute of limitations u a bar to the enforameat of the lien of this Instrument a to any action brought to enforce the Note or any other obligation secured by this Instrument. 2A. WAIVER OF MARSHALLING. Nawithstandiag the exiueaa of nay other security u?terats in the Property held by Lender or by any abet parry, Leader shall have the right to determine the ceder is which nay or all of the Property shall be wbjected to the remedies provided herein. Lender shall have the right to determine the order is which nay or all portions of the indebtedness secured hereby arc satisfied from the proceeds rcaliud upon the exercise of the remedies provided herein. Borrower, nay party who consents to this Instrument and nay party who now or hereafter aoquim a security interest in the Property and who hu actwl tx constructive notice hereof hereby waives nay and all right to require the marshalling of asset: is connection with the exercise of nay of the remedies pernitted by applicable law or provided herein. 2S. CONSTRUCTION IRAN PROVISIONS Borrower agrees to comply with the eovenanu and conditions of the Construction Loan Agreement, if any, which is hereby incorporated by rcfennce in and madF mart of this lastrument All advances made by Leader pursuant to the Construction Loaa Agreement shall be indebtedness of Borrower secured by this Inswment, and such advances may be obligatory u provided in the Construction Loan Agreement. All sums disbursed by Lender prior to compktton of the improvements to protect the security of this Instrument up ro the principal amount of the Note shall be treated u disbursetcteaa pursuant w the Coassntction Lwtn Agreement. All such sums shall bear interest from the date of disbursement at the me stated in the Note, unless oolkctiou from Borrower of interest at such me would be contrary to appliabk law in which event such amounts shall bear interne at the highest rate which may be eolkcted from Borrower under applicable law and shall be payable upon notice from Lender to Borrower requesting payment therefor. From time to time u Lender deems necessary to protect Leader's interests. Borrower shag, upon request of Leader, execute and de4ver to Lender, is such form u Lender shall diced, assignments of any cad all rights or claims which relate to the construction of the Property and which Borrower may have against any party supplying or who has supplied labor, materials or services in connection with construction of the Property. In case of breach by Borrower of the covenants and conditions of the Construction Lora Agreement. Lender, at Lender's option, with or without entry upon the Property. (i) may invoke any of the rights or remedies provided is the Construction Loan Agreement, (6) may aoaknte the sums secured by this Inswmeat and invoke those remedies provided in pangnph 27 hereof. or (oi) may do both. If, afar the comrrsencement of amortitatioa of the Note, the Note cad this Inswment arc sold by Lender, fgom cad afkr suds sale the Construction Loan Agreement shall case to be a part of this lnutumeat and Borrower shall not risen any right of set-off, oounterdaim or other claim or defense arising out of or in cont?ettioa with the Construction Loan Agreement against the obGgatiats of the Note and this Ittswment. 2.i. ASSIGNMENT OF RENTS: APPOINTMENT OF RECEIVER: LENDER IN POSSESSION. As pan of the cottsidention for the indebtedness tvideaced 6y the Note, Borrower hereby absolutely acct unconditionally assigns and uansftts to Lender aN the rents and rcventra of the Property, including those now due, put due, or to become due by virtue of nay lease or other agreement for the otuttpaocy or use of all or nay part of the Property, regardless of to whom the rents cad revenues of the Property arc payable. Borrower hereby authorizes Leader or Leader's agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to Leader or Lender i agents; provided, however, that prior to written notice given by Lender to Borrower of the breach by Borrower of nay covenant or agreement of Borrower in this Instrument, Borrower shall collect and restive all rents and reveaua of the Property u trustee for the benefit of Leader and Borrower, to apply the rents and revenues so collected to the sums second by this Instrument in the order provided in puagraph 3 hereof with the balance, so bag u no such breach hu oavrrcd, to the aeoottnt of Borrower, it being founded by Borrower and Leader that this assignment of rents constitutes as absolute assigntnem and not an assignment for additional security Daly. Upon delivery of written notice by Leader to Borrower of the breach by Borrower of any covenant or agreement of Borrower is this Instrument, and without the necaxity of Lender entering upon aced eking and maintaining full control of the Property in person, by agent or by acourt-appointed receiver, Lender shall immediately be entitled to posussion of all rents and revenues of the Property u specified in this paragraph 26 u the same become due and payable, including but not limited to rents then due cad unpaid, and all such Hots shall immediately upon delivery of such notice bt held by Borrower as trustee for the benefit of Lender Daly; . provided, however, that the written ctotice by Lender to Borrower of the breach by Borrower shall conuin a suternent that Lendei exercises its tights to such rents. Borrower agrees that commtnawg upon delivery of such written notice of Borrower's beach by Lender to Borrower, each tenant of the Property shall make such rents payable to and pay such Hots to Lender or Lender's agents on Lender's written demand to each tenant therefor, delivered to each tenant personally, by mail or by delivering such demand to each renal unit. without any liability on the pan of said tenant to iuquin further u to the existence of a default by Borrower. Borrower hereby covenants that Borrower hu not executed nay prior assignment of said rents. that Borrower hu not performed. and will not perform, nay acts or hu not executed. and will not execute, nay utswmeot which would prevent Lender from exerr:ising its .rights under this ~ puagnph 26, cad that at the time of execution of this Instrument there has been ao anticipation or prepayment of nay of the Hots of the Property for coon than two atonths prior to the due dates of such rents. Borrower covenants that Borrower will not hercaRer collect or accept payment of any rents of the Property more than two months poor to the dot data of such rents. Borrower further covenants that Borrower will execute and deliver to Lender such lunher assignmenu of rents and rcvtntta of the Property u Leader may from time to time rcquat. Upon Borrower's breuh of any covenant or agnemeat of Borrower in this Inswment, Lender may in person. by .agent or by a court- appointed receiver, regardless of the adequacy of Lender's setwrity, enter upon cad eke and maintain full control of the Property in order to perform all acts necessary and appropriate for the opention and maintenance thereof including, but not limited to, the execution, cancellation or rnodifigtion of leases, the collection of all ants and rcvenua of the Property, the making of repairs ro the Property -and the execution or urmiuation of contracts providing for the management or maintenance of the Property: all on such terms u art deemed best ro protect the security of this Inswment. In the event Lender elects to seek the appointment of a receiver for the Property upon Borrower's breach of nay covenant of agreement of Borrower in this Inswment, Borrower hereby expressly consents to the appointment of such receiver. Lender or the receiver shall be mtitkd ro receive a reasonable fee for so managing the Property. All rents and rcvenua collected subsequent to delivery of written notice by Lender to Borrower of the breach by Borrower of any covenant or agreement of Borrower in this Instrument shall bt applied first to the costs. if arty. of ukiag control of and managing the Property cad ooilecting the rents, including, but not limited to, attorney's fen, receiver's fees, premiums on receiver's bonds, costs of repairs ro the•Property, premiums on insurance policies, taxes, assessments and other charges on the Property. and the costs of discharging any obligation or liability of Borrower u I lessor or landbrd of the Property and then to the sums secured by this Inswmeat. Linder or the receiver shall have access to the books and records used in the operation and maintenance of the Property cad shall be liable to account only for those mats actually received. Lender shall not bt liable ro Borrower, anyone claiming under or through Borrower or anyone havmg an interest in the Property by reason of anything done or left undone by Lender under this paragnph 26. t If the Wars of the Property arc not wffident ro meet the costs, if any, of eking control of acct managing the Property and collecting the rents, ! any funds expended by Lender for such purposes shall become indebtedness of Borrower to Lender secured by this Inurement pursuant to puagnph 8 hereof. Unless Lender and Borrower agree is wriuag ro other terms of payttten4 such amounts shall be payable upon notice from r ~ Lender to Borrower requesting payment thereof and shall bee interest from the daze of disbursement at the rate stated in the Note unless payment of interest at such rate would be convary W appliabk law, in which event such amounts shall bee interest at the highest me which may be collected from Borrower under applicable law. Any entering upon and takirsg and maintaining of control of the Property by Leader or the receiver and nay application of rents as provided herein shall not cure or waive any default hereunder or invalidate nay other right or remedy of Lender under app4cabk law or provided herein. ~ This assignment of rents of the Property shalt terminate at such time u this Instrument aria to secure indebtedaas held by Lender. Uniform f ot+enants-Mulufamity-1177-FNMA/FHLMC Uniform instrument Nate 6 ol8vat~ll I B!~ ~ PaGE~46