Unassociated Document


    EXHIBIT
10.12

     

     

    
      

      

    

    
      	
              SCOTSDALE MI
      LLC.,
      as Mortgagor 

            
	 	 	 
	
              To

            
	 
	
              CITIGROUP GLOBAL MARKETS
      REALTY, INC., as
      Mortgagee 

            
	 	 	 
	 	 	 
	 	
              MORTGAGE

            	 
	 	 	 
	 	 	 
	 	
              Dated:

            	
              As
      of June 30, 2006

            	 
	 	 	 	 
	 	
              Location:

            	
              37650
      Dale Drive

              Westland,
      Michigan 48185

            	 
	 	 	 	 
	 	
              County:

            	
              Wayne
      County

            	 


    

     

    
      

      

    

    
      
        
        

      

      
        
        

        
          

        

      

       

    

    
       

    

    THIS MORTGAGE (as the
same may be amended, restated, extended, supplemented or otherwise modified from
time to time, this “Mortgage”), is
made as of the 30th day of June, 2006, by SCOTSDALE MI LLC, a Delaware
limited liability company, having an address c/o
Lightstone Holdings LLC, 326 Third Street, Lakewood, New Jersey
08701
(“Mortgagor”), to
and for the benefit of CITIGROUP GLOBAL MARKETS REALTY CORP., a New York
corporation, having an address at 388 Greenwich Street, 19th Floor, New York,
New York 10013 (together with its successors and assigns, “Mortgagee”).
Capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Loan Agreement (hereinafter
defined).

     

    WITNESSETH:

     

    To secure
the payment of a loan (the “Loan”) in the
original principal sum of Fifty-Two Million and NO/100ths Dollars
($52,000,000.00), lawful money of the United States of America, being made from
Mortgagee to Mortgagor and the Additional Borrowers (as hereinafter defined) on
the date hereof pursuant to the terms and conditions of a certain Loan and
Security Agreement, dated as of the date hereof (as amended, modified or
restated, the “Loan
Agreement”),
between Mortgagor, together with CARRIAGE PARK MI LLC, a Delaware limited
liability company, CHERRY HILL MI LLC, a Delaware limited liability company,
MACOMB MANOR MI LLC, a Delaware limited liability company and CARRIAGE HILL MI
LLC, a Delaware limited liability company (collectively, the “Additional
Borrowers”) and
Mortgagee, which Loan is evidenced by and is to be paid with interest according
to a Promissory Note in the principal sum of Fifty-Two Million and NO/100ths
Dollars ($52,000,000.00) dated as of the date hereof having a scheduled maturity
date of July 11, 2016 (collectively, as amended, modified, renewed or restated
and together with any substitutes or replacements therefor, the “Note”), made
by Mortgagor and the Additional Borrowers to Mortgagee and all other sums now or
hereafter due hereunder, or otherwise due under the Loan Documents (as defined
in the Loan Agreement) (the principal amount of the Loan, together with interest
thereon and all sums due hereunder and under the Loan Agreement, the Note and
the other Loan Documents being collectively called the “Debt”), and
all of the agreements, covenants, conditions, warranties, representations and
other obligations (other than to repay the Debt) made or undertaken by Mortgagor
or any other person or entity to Mortgagee or others as set forth in the Loan
Documents (collectively, the “Obligations”),
Mortgagor has mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned, and hypothecated and by these presents
does hereby mortgage, warrant, give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge, assign, hypothecate, convey and grant a security
interest unto Mortgagee, with power of sale, subject to the Permitted
Encumbrances, all of Mortgagor’s right, title, interest and estate in and to the
real property described
on Exhibit A attached
hereto (the “Premises”) and
the buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the “Improvements”);


     

    TOGETHER
WITH: all right, title, interest and estate of Mortgagor now owned, or hereafter
acquired, in and to the following property, rights, interests and estates (the
Premises and the Improvements, together with the following property, rights,
interests and estates being hereinafter described, are collectively referred to
herein as the “Mortgaged
Property”):

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (a)  all
easements, rights-of-way, strips and gores of land, streets, ways, alleys,
passages, sewer rights, water, water courses, water rights and powers, air
rights and development rights, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way belonging, relating or pertaining to the Premises and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Premises, to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, curtesy and
rights of curtesy, property, possession, claim and demand whatsoever, both at
law and in equity, of Mortgagor of, in and to the Premises and the Improvements,
and every part and parcel thereof, with the appurtenances thereto and all rights
to divide the property pursuant to Public Act 591 of the Michigan Public Acts of
1966, as amended (MCL 560-101 et. seq.);

     

    (b)  all
machinery, equipment, fixtures (including, but not limited to, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures) and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Mortgagor,
or in which Mortgagor has or shall have an interest, now or hereafter located
upon the Premises or the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements (hereinafter collectively called the “Equipment”),
including the proceeds of any sale or transfer of the foregoing, and the right,
title and interest of Mortgagor in and to any of the Equipment which may be
subject to any security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the state or states where any of the Mortgaged Property
is located (the “Uniform Commercial
Code”)
superior in lien to the lien of this Mortgage;

     

    (c)  all
awards or payments, including interest thereon, which may heretofore and
hereafter be made with respect to the Mortgaged Property, whether from the
exercise of the right of eminent domain or condemnation (including, but not
limited to, any transfer made in lieu of or in anticipation of the exercise of
said rights), or for a change of grade, or for any other injury to or decrease
in the value of the Mortgaged Property;

     

    (d)  all
leases, tenancies, licenses, subleases, assignments and/or other rental or
occupancy agreements (including, without limitation, any and all guarantees and
supporting obligations of and security deposit and letter of credit rights
relating to any of the foregoing) heretofore or hereafter entered into affecting
the use, enjoyment or occupancy of the Premises and the Improvements, including
any extensions, renewals, modifications or amendments thereof (collectively, the
“Leases”),
together with all rights, powers, privileges, options and other benefits of
Mortgagor as lessor under the Leases, including, without limitation, the
immediate and continuing right to receive and collect all rents, income,
revenues, issues, profits, condemnation awards, insurance proceeds, moneys and
security payable or receivable under the Leases or pursuant to any of the
provisions thereof, whether as rent or otherwise, the right to accept or reject
any offer made by any tenant pursuant to its Lease to purchase the Mortgaged
Property and any other property subject to the Lease as therein provided and to
perform all other necessary or appropriate acts with respect to such Leases as
agent and attorney-in-fact for Mortgagor, and the right to make all waivers and
agreements, to give and receive all notices, consents and releases, to take such
action upon the happening of a default under any Lease, including the
commencement, conduct and consummation of proceedings at law or in equity as
shall be permitted under any provision of any Lease or by any law, and to do any
and all other things whatsoever which Mortgagor is or may become entitled to do
under any such Lease together with all accounts receivable, contract rights,
franchises, interests, estates or other claims, both at law or in equity,
relating to the Mortgaged Property, to the extent not included in rent earnings
and income under any of the Leases, including the right to receive and collect
any sums payable to Mortgagor thereunder and all deposits or other security or
advance payments made by Mortgagor with respect to any of the services related
to the Mortgaged Property or the operation thereof, and together with all rents,
rent equivalents (including room revenues, if applicable), moneys payable as
damages or in lieu of rent or rent equivalents, royalties (including, without
limitation, all oil and gas or other mineral royalties and bonuses), income,
receivables, receipts, revenues, deposits (including, without limitation,
security, utility and other deposits), accounts, cash, issues, profits, charges
for services rendered, and other consideration of whatever form or nature
received by or paid to or for the account of or benefit of Mortgagor or its
agents or employees from any and all sources arising from or attributable to the
Premises and the Improvements (the “Rents”), and
together with all proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the
Debt;

     

    
      
        
        

      

      
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    (e)  all of
Mortgagor’s right, title and interest in, to and under any and all reserve,
deposit or escrow accounts (the “Accounts”) made
pursuant to any of the Loan Documents, together with all income, profits,
benefits, investment property and advantages arising therefrom, and together
with all rights, powers, privileges, options and other benefits of Mortgagor
under the Accounts, and together with the right to do any and all other things
whatsoever which Mortgagor is or may become entitled to do under the
Accounts;

     

    (f)  all trade
names, software, trademarks, trademark applications, trademark licenses,
servicemarks, logos, copyrights, copyright applications, goodwill, books and
records and all other general intangibles relating to or used in connection with
the operation of the Mortgaged Property;

     

    (g)  all
proceeds of and any unearned premiums on any insurance policies covering the
Mortgaged Property, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Mortgaged Property or any part thereof;

     

    (h)  the
right, following an Event of Default, in the name and on behalf of Mortgagor, to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to commence any action or proceeding to protect the
interest of the Mortgagee in the Mortgaged Property or any part
thereof;

     

    (i)  all
accounts, escrows, reserves, documents, instruments, chattel paper, monetary
obligations, claims, deposits, investment property and general intangibles, as
the foregoing terms are defined in the Uniform Commercial Code, and all books,
records, plans, specifications, designs, drawings, permits, consents, licenses,
franchises, management agreements, contracts, contract rights (including,
without limitation, any contract with any architect or engineer or with any
other provider of goods or services for or in connection with any construction,
repair, or other work upon the Mortgaged Property), approvals, actions, refunds
or real estate taxes and assessments (and any other governmental impositions
related to the Mortgaged Property), and causes of action that now or hereafter
relate to, are derived from or are used in connection with the Mortgaged
Property, or the use, operation, management, improvement, alteration, repair,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon;

     

    
      
        
        

      

      
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    (j)  all
accounts receivable, contract rights, interests, estate or other claims, both in
law and in equity, which Mortgagor now has or may hereafter acquire in the
Mortgaged Property or any part thereof;

     

    (k)  all
rights which Mortgagor now has or may hereafter acquire, to be indemnified
and/or held harmless from any liability, loss, damage, cost or expense
(including, without limitation, attorneys’ fees and disbursements) relating to
the Mortgaged Property or any part thereof;

     

    (l)  all
personal property of Mortgagor; and 

     

    (m)  any and
all proceeds and products of any of the foregoing.

     

    TO HAVE
AND TO HOLD the above granted and described Mortgaged Property unto and to the
use and benefit of Mortgagee, and the successors and assigns of Mortgagee,
forever;

     

    PROVIDED,
HOWEVER, these presents are upon the express condition that, if Mortgagor and
the Additional Borrowers shall well and truly pay to Mortgagee the Debt at the
time and in the manner provided in the Note and this Mortgage and shall pay all
other sums due under the Loan Agreement or any other Loan Document, these
presents and the estate hereby granted shall cease, terminate and be
void;

     

    AND
Mortgagor represents and warrants to and covenants and agrees with Mortgagee as
follows:

     

    1.  Payment of Debt and
Incorporation of Covenants, Conditions and Agreements.
Mortgagor and the Additional Borrowers shall pay the Debt at the time and in the
manner provided in the Note, the Loan Agreement and in this Mortgage. Mortgagor
and the Additional Borrowers will duly and punctually perform all of the
covenants, conditions and agreements contained in the Note, the Loan Agreement,
this Mortgage and the other Loan Documents all of which covenants, conditions
and agreements are hereby made a part of this Mortgage to the same extent and
with the same force as if fully set forth herein. 

     

    2.  Warranty of
Title.
Mortgagor warrants that Mortgagor has a good, marketable and insurable fee
simple interest in the Mortgaged Property and has the right to mortgage, give,
grant, bargain, sell, alien, enfeoff, convey, confirm, pledge, assign and
hypothecate the Mortgaged Property and that Mortgagor possesses a fee simple
estate in the Mortgaged Property and that it owns the Mortgaged Property free
and clear of all liens, encumbrances and charges whatsoever except for the
Permitted Encumbrances. Mortgagor represents and warrants that none of the
Permitted Encumbrances will materially and adversely affect (i) Mortgagor’s
ability to pay in full in a timely manner its obligations, including, without
limitation, the Debt, (ii) the use of the Mortgaged Property for the use
currently being made thereof, (iii) the operation of the Mortgaged Property, or
(iv) the value of the Mortgaged Property. Mortgagor shall forever warrant,
defend and preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to Mortgagee against the
claims of all persons whomsoever.

     

    
      
        
        

      

      
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    3.  Insurance. (a)
Mortgagor, at its sole cost and expense, shall maintain or cause to be
maintained insurance with respect to the Mortgaged Property for the mutual
benefit of Mortgagor and Mortgagee as required by Section 5.4 of the Loan
Agreement.

     

    (b) If the
Mortgaged Property shall be damaged or destroyed, in whole or in part, by fire
or other casualty (an “Insured
Casualty”),
Mortgagor shall give immediate notice thereof to Mortgagee and to the insurance
carrier. Subject to the terms of the Loan Agreement, Mortgagor shall promptly
repair, replace or rebuild the Mortgaged Property in accordance with, and all
amounts paid with respect to such Insured Casualty under all insurance policies
maintained by Mortgagor shall be governed by, the terms and conditions of
Section 5.5 of the Loan Agreement. The expenses incurred by Mortgagee in the
adjustment and collection of insurance proceeds shall become part of the Debt
and shall be secured hereby and shall be reimbursed by Mortgagor to Mortgagee
upon demand.

     

    4.  Payment of Impositions and
Other Charges. Subject
to Mortgagor’s right to contest set forth in Section 5.3(B) of the Loan
Agreement and the provisions of Section 5 below, Mortgagor shall cause to be
paid all Impositions now or hereafter levied or assessed or imposed against the
Mortgaged Property or any part thereof as the same become due and payable.
Mortgagor shall promptly pay for all utility services provided to the Mortgaged
Property. Mortgagor shall furnish to Mortgagee or its designee receipts for the
payment of the Impositions prior to the date the same shall become delinquent
(provided, however, that Mortgagor shall not be required to furnish such
receipts for payment of Impositions in the event that such Impositions are to be
paid by Mortgagee pursuant to Section 5 hereof).

     

    5.  Impositions and Insurance
Reserve.
Mortgagor shall make monthly deposits into the Impositions and Insurance Reserve
of amounts sufficient to pay Impositions and Insurance Premiums in accordance
with the terms of Article VI of the Loan Agreement.

     

    6.  Condemnation.
Mortgagor shall promptly give Mortgagee written notice of the actual or
threatened commencement of any condemnation or eminent domain proceeding
affecting the Mortgaged Property or any portion thereof and shall deliver to
Mortgagee copies of any and all papers served in connection with such
proceedings. Subject to the terms of Section 5.5 of the Loan Agreement,
Mortgagee is hereby irrevocably appointed as Mortgagor’s attorney-in-fact,
coupled with an interest, with exclusive power to collect, receive and retain
any award or payment for said condemnation or eminent domain and to make any
compromise or settlement in connection with such proceeding. Notwithstanding any
taking by any public or quasi public authority through eminent domain or
otherwise (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of such taking), Mortgagor shall continue to pay
the Debt at the time and in the manner provided for its payment in the Loan
Agreement. Subject to the terms of the Loan Agreement, Mortgagor shall cause the
award or payment made in any condemnation or eminent domain proceeding, which is
payable to Mortgagor, to be paid directly to Mortgagee. The application of any
such award or payment shall be governed by the applicable provisions of the Loan
Agreement. 

     

    
      
        
        

      

      
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    7.  Maintenance of Mortgaged
Property.
Mortgagor shall cause the Mortgaged Property to be operated and maintained in a
good and safe condition and repair and in keeping with the condition and repair
of properties of a similar use, value, age, nature and construction. Mortgagor
shall not use, maintain or operate the Mortgaged Property in any manner which
constitutes a public or private nuisance or which makes void, voidable, or
cancelable, or increases the premium of, any insurance then in force with
respect thereto. The Improvements and the Equipment shall not be removed or
demolished and no Material Alterations shall be made thereto (except for normal
replacement or disposal of the Equipment and except as otherwise expressly
permitted in the Loan Agreement) without the consent of Mortgagee. Mortgagor
shall promptly comply in all material respects with all laws, orders and
ordinances affecting the Mortgaged Property, or the use thereof.

     

    8.  Use of Mortgaged
Property.
Mortgagor shall not initiate, join in, acquiesce in, or consent to any change in
any private restrictive covenant, zoning law or other public or private
restriction, limiting or defining the uses which may be made of the Mortgaged
Property or any part thereof, nor shall Mortgagor initiate, join in, acquiesce
in, or consent to any zoning change or zoning matter affecting the Mortgaged
Property, which in any of the foregoing cases could reasonably be expected to
result in a Material Adverse Effect. If under applicable zoning provisions the
use of all or any portion of the Mortgaged Property is or shall become a
nonconforming use, Mortgagor will not cause or permit such nonconforming use to
be discontinued or abandoned without the express written consent of Mortgagee,
which consent shall not be unreasonably withheld. Mortgagor shall not permit or
suffer to occur any waste on or to the Mortgaged Property or to any portion
thereof and shall not take any steps whatsoever to convert the Mortgaged
Property, or any portion thereof, to a condominium or cooperative form of
management. Mortgagor will not install or permit to be installed on the Premises
any underground storage tank or above-ground storage tank in violation of the
Environmental Laws.

     

    9.  Transfer or Encumbrance of
the Mortgaged Property. (a)
Mortgagor acknowledges that Mortgagee has examined and relied on the
creditworthiness and experience of Mortgagor in owning and operating properties
such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee
will continue to rely on Mortgagor’s ownership of the Mortgaged Property as a
means of maintaining the value of the Mortgaged Property as security for
repayment of the Debt. Except as expressly permitted under this Mortgage, the
Loan Agreement or under the other Loan Documents, Mortgagor shall not cause or
suffer to occur or exist, directly or indirectly, voluntarily or involuntarily,
by operation of law or otherwise, any sale, transfer, mortgage, pledge, lien or
encumbrance (other than Permitted Encumbrances) (collectively, “Transfers”) of (i)
all or any part of the Mortgaged Property or any interest therein, or (ii) any
direct or indirect beneficial ownership interest (in whole or in part) in
Mortgagor, irrespective of the number of tiers of ownership, without the prior
written consent of Mortgagee. 


    
      
        
        

      

      
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    (b) The
occurrence of any Transfer in violation of this Section 9 shall constitute an
Event of Default hereunder, whereupon Mortgagee at its option, without being
required to demonstrate any actual impairment of its security or any increased
risk of default hereunder, may declare the Debt immediately due and payable.


     

    (c) Mortgagee’s
consent to any Transfer of the Mortgaged Property or any interest in Mortgagor
shall not be deemed to be a waiver of Mortgagee’s right to require such consent
to any future occurrence of same. Any attempted or purported Transfer of the
Mortgaged Property or of any direct or indirect interest in Mortgagor, if made
in contravention of this Section 9, shall be null and void and of no force and
effect.

     

    10.  Taxes on Security;
Documentary Stamps; Intangibles Tax. (a)
Mortgagor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note, this Mortgage or the liens
created or secured by the Loan Documents, other than income, franchise and doing
business taxes imposed on Mortgagee. If there shall be enacted any law
(i) deducting the Loan from the value of the Mortgaged Property for the
purpose of taxation, (ii) affecting any lien on the Mortgaged Property, or
(iii) changing existing laws of taxation of mortgages, deeds of trust, security
deeds, or debts secured by real property, or changing the manner of collecting
any such taxes, Mortgagor shall promptly pay to Mortgagee, on demand, all taxes,
costs and charges for which Mortgagee is or may be liable as a result thereof;
however, if such payment would be prohibited by law or would render the Loan
usurious, then instead of collecting such payment, Mortgagee may declare all
amounts owing under the Loan Documents to be immediately due and payable.


     

    (b) If at any
time the United States of America, any State thereof or any subdivision of any
such State shall require revenue or other stamps to be affixed to the Note or
this Mortgage, or impose any other tax or charge on the same, Mortgagor will pay
for the same, with interest and penalties thereon, if any. Mortgagor hereby
agrees that, in the event that it is determined that additional documentary
stamp tax or intangible tax is due hereon or any mortgage or promissory note
executed in connection herewith (including, without limitation, the Note),
Mortgagor shall indemnify and hold harmless Mortgagee for all such documentary
stamp tax and/or intangible tax, including all penalties and interest assessed
or charged in connection therewith. Mortgagor shall pay same within ten (10)
days after demand of payment from Mortgagee and the payment of such sums shall
be secured by this Mortgage and such sums shall bear interest at the Default
Rate (as defined in the Note) from and after the eleventh (11th) day
after demand until paid in full.

     

    (c) Mortgagor
shall hold harmless and indemnify Mortgagee, its successors and assigns, against
any liability incurred by reason of the imposition of any tax on the making and
recording of this Mortgage.

     

    11.  No Credits on Account of the
Debt.
Mortgagor will not claim or demand or be entitled to any credit or credits on
account of the Debt for any part of the Impositions assessed against the
Mortgaged Property, or any part thereof, and no deduction shall otherwise be
made or claimed from the assessed value of the Mortgaged Property, or any part
thereof, for real estate tax purposes by reason of this Mortgage or the Debt. In
the event such claim, credit or deduction shall be required by law, Mortgagee
shall have the option, by written notice of not less than ninety (90) days, to
declare the Debt immediately due and payable. 

     

    
      
        
        

      

      
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    12.  Performance of Other
Agreements.
Mortgagor shall duly and punctually observe and perform each and every material
term, provision, condition, and covenant to be observed or performed by
Mortgagor pursuant to the terms of any agreement or recorded instrument
(including all instruments comprising the Permitted Encumbrances) affecting or
pertaining to the Mortgaged Property, and will not suffer or permit any default
or event of default (after giving effect to any applicable notice requirements
and cure periods) to exist under any of the foregoing.

     

    13.  Further Acts; Secondary
Market Transactions. (a)
Mortgagor will, at its sole cost and expense, and without expense to Mortgagee,
do, execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, Uniform Commercial
Code financing statements or continuation statements, transfers and assurances
as Mortgagee shall, from time to time, reasonably require, for the better
assuring, conveying, assigning, transferring, and confirming unto Mortgagee the
property and rights hereby mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or
intended now or hereafter so to be, or which Mortgagor may be or may hereafter
become bound to convey or assign to Mortgagee, or for carrying out the intention
or facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage. Mortgagor, on demand, will execute and
deliver and, upon Mortgagor’s failure to do so within five (5) Business Days
after Mortgagee’s request therefor, hereby authorizes Mortgagee to execute in
the name of Mortgagor or without the signature of Mortgagor to the extent
Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Mortgagee in the Mortgaged Property. Upon foreclosure or the
appointment of a receiver, Mortgagor will, at its sole cost and expense,
cooperate fully and completely to effect the assignment or transfer of any
license, permit, agreement or any other right necessary or useful to the
operation of the Mortgaged Property. Mortgagor grants to Mortgagee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Mortgagee
at law and in equity, including, without limitation, such rights and remedies
available to Mortgagee pursuant to this Section.

     

    (b) Subject
to the terms and conditions set forth in the Loan Agreement, Mortgagee shall
have the right to engage in one or more Secondary Market Transactions and, in
connection therewith, Mortgagee may transfer its obligations under this
Mortgage, the Note, the Loan Agreement and under the other Loan Documents (or
may transfer the portion thereof corresponding to the transferred portion of the
Obligations), and thereafter Mortgagee shall be relieved of any obligations
hereunder and under the other Loan Documents arising after the date of said
transfer with respect to the transferred interest.

     

    14.  Recording of Mortgage,
Etc. Upon the
execution and delivery of this Mortgage and thereafter, from time to time,
Mortgagor will cause this Mortgage, and any security instrument creating a lien
or security interest or evidencing the lien hereof upon the Mortgaged Property
and each instrument of further assurance to be filed, registered or recorded in
such manner and in such places as may be required by any present or future law
in order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Mortgagee in, the Mortgaged Property. Mortgagor
will pay all filing, registration or recording fees, and all expenses incident
to the preparation, execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do.

     

    
      
        
        

      

      
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    15.  Reporting
Requirements.
Mortgagor agrees to give prompt notice to Mortgagee of the insolvency or
bankruptcy filing of Mortgagor or the death, insolvency or bankruptcy filing of
any Guarantor.

     

    16.  Intentionally
Deleted.

     

    17.  Remedies. Upon the
occurrence and during the continuance of an Event of Default, Mortgagee may, at
Mortgagee’s option, by Mortgagee itself, or otherwise, invoke the power of sale
and immediately exercise or pursue or cause to be exercised or pursued any or
all of the rights and remedies contained in this Mortgage and in any other Loan
Document or otherwise available at law or in equity including the right to do
any one or more of the following: 

     

    (a)  Right to Perform Mortgagor’s
Covenants. If
Mortgagor has failed to keep or perform any covenant whatsoever contained in
this Mortgage or the other Loan Documents, Mortgagee may, but shall not be
obligated to do so, perform or attempt to perform said covenant; and any payment
made or expense incurred in the performance or attempted performance of any such
covenant, together with any sum expended by Mortgagee that is chargeable to
Mortgagor or subject to reimbursement by Mortgagor under the Loan Documents,
shall be and become a part of the Debt, and Mortgagor promises, upon demand, to
pay to Mortgagee, at the place where the Note is payable, all sums so incurred,
paid or expended by Mortgagee, with interest from the date when paid, incurred
or expended by Mortgagee at the Default Rate (as defined in the
Note).

     

    (b)  Right of
Entry. Subject
to any applicable law, the license granted to Mortgagor under Error! Reference source not
found. hereof
shall automatically be revoked and Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including, without limitation, the right to rent the same
for the account of Mortgagor and to deduct from such Rents all costs, expenses,
and liabilities of every character incurred by the Mortgagee in collecting such
Rents and in managing, operating, maintaining, protecting, or preserving the
Mortgaged Property and to apply the remainder of such Rents on the Debt in such
manner as Mortgagee may elect. All such costs, expenses, and liabilities
incurred by Mortgagee in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Mortgaged Property, if not paid out
of Rents as hereinabove provided, shall constitute a demand obligation owing by
Mortgagor and shall bear interest from the date of expenditure until paid at the
Default Rate as specified in the Note, all of which shall constitute a portion
of the Debt. If Mortgagee elects to enter the Mortgaged Property as provided for
herein, Mortgagee may invoke any and all legal remedies to dispossess Mortgagor,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
the Mortgagee pursuant to this subsection, Mortgagee shall not be liable for any
loss sustained by Mortgagor resulting from any failure to let the Mortgaged
Property, or any part thereof, or from any other act or omission of Mortgagee in
managing the Mortgaged Property unless such loss is caused by the willful
misconduct or gross negligence of Mortgagee, its agents, employees or officers,
nor shall Mortgagee be obligated to perform or discharge any obligation, duty,
or liability under any Lease or under or by reason hereof or the exercise of
rights or remedies hereunder. Mortgagor shall and does hereby agree to
indemnify, defend and hold harmless the Indemnified Parties (as defined in
Section 23 below) from and against, any and all liability, claim, demand,
loss, damage, cost or expense (including, without limitation, reasonable
attorneys’ fees and disbursements) which may or might be suffered or incurred by
any Indemnified Party under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, or by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in any such Lease as and to the extent
provided under Section 23 below. Nothing in this subsection shall impose any
duty, obligation, or responsibility upon any Indemnified Party for the control,
care, management, leasing, or repair of the Mortgaged Property, nor for the
carrying out of any of the terms and conditions of any such Lease prior to the
transfer of title to the Mortgaged Property to any Indemnified Party by
foreclosure, deed-in-lieu thereof, exercise of power of sale or otherwise.
Mortgagor hereby assents to, ratifies, and confirms any and all actions of the
Mortgagee with respect to the Mortgaged Property taken under this
subsection.

     

    
      
        
        

      

      
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    (c)  Right to
Accelerate.
Mortgagee may, without notice or demand, declare the entire unpaid balance of
the Debt immediately due and payable.

     

    (d)  Mortgagee’s Judicial
Remedies.
Mortgagee may proceed by suit or suits, at law or in equity, to enforce the
payment of the Debt to foreclose the liens and security interests of this
Mortgage as against all or any part of the Mortgaged Property, and to have all
or any part of the Mortgaged Property sold under the judgment or decree of a
court of competent jurisdiction. This remedy shall be cumulative of any other
nonjudicial remedies available to the Mortgagee under this Mortgage or the other
Loan Documents. Proceeding with a request or receiving a judgment for legal
relief shall not be or be deemed to be an election of remedies or bar any
available nonjudicial remedy of the Mortgagee.

     

    (e)  Mortgagee’s Right to
Appointment of Receiver.
Mortgagee, as a matter of right and (i) without regard to the sufficiency
of the security for repayment of the Debt and without notice to Mortgagor,
(ii) without any showing of insolvency, fraud, or mismanagement on the part
of Mortgagor, (iii) without the necessity of filing any judicial or other
proceeding other than the proceeding for appointment of a receiver, and
(iv) without regard to the then value of the Mortgaged Property, shall be
entitled to the appointment of a receiver or receivers for the protection,
possession, control, management and operation of the Mortgaged Property,
including (without limitation), the power to collect the Rents, enforce this
Mortgage and, in case of a sale and deficiency, during the full statutory period
of redemption (if any), whether there be a redemption or not, as well as during
any further times when Mortgagor, except for the intervention of such receiver,
would be entitled to collection of such Rents. Mortgagor hereby irrevocably
consents to the appointment of a receiver or receivers. Any receiver appointed
pursuant to the provisions of this subsection shall have the usual powers and
duties of receivers in such matters.

     

    
      
        
        

      

      
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    (f)  Mortgagee’s Uniform
Commercial Code Remedies.
Mortgagee may exercise its rights of enforcement under the Uniform Commercial
Code in effect in the state in which the Mortgaged Property is
located.

     

    (g)  Sale of Mortgaged
Property. Sell
for cash or upon credit the Mortgaged Property or any part thereof and all
estate, claim, demand, right, title and interest of Mortgagor therein and rights
of redemption thereof, pursuant to the power of sale contained herein or
otherwise, at one or more sales, as an entirety or in parcels, at such time and
place, upon such terms and after such notice thereof as may be required or
permitted by law.

     

    (h)  Other
Rights.
Mortgagee (i) may surrender the insurance policies maintained pursuant to the
Loan Agreement or any part thereof, and upon receipt of the proceeds shall apply
the unearned Insurance Premiums as a credit on the Debt, and, in connection
therewith, Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact
(which is coupled with an interest and is therefore irrevocable) for Mortgagor
to collect such Insurance Premiums; (ii) may apply the Impositions and Insurance
Reserve and/or any other Reserves held pursuant to this Mortgage or the other
Loan Documents, and any other funds held by Mortgagee toward payment of the
Debt; and (iii) shall have and may exercise any and all other rights and
remedies which Mortgagee may have at law or in equity, or by virtue of any of
the Loan Documents, or otherwise.

     

    (i)  Discontinuance of
Remedies. If
Mortgagee shall have proceeded to invoke any right, remedy, or recourse
permitted under the Loan Documents and shall thereafter elect to discontinue or
abandon same for any reason, Mortgagee shall have the unqualified right so to do
and, in such event, Mortgagor and Mortgagee shall be restored to their former
positions with respect to the Debt, the Loan Documents, the Mortgaged Property
or otherwise, and the rights, remedies, recourses and powers of Mortgagee shall
continue as if same had never been invoked.

     

    (j)  Remedies
Cumulative. All
rights, remedies, and recourses of Mortgagee granted in the Note, this Mortgage,
the Loan Agreement and the other Loan Documents, any other pledge of collateral,
or otherwise available at law or equity: (i) shall be cumulative; (ii) may be
pursued separately, successively, or concurrently against Mortgagor, the
Mortgaged Property, or any one or more of them, at such time and in such order
as Mortgagee may determine in its sole discretion; (iii) may be exercised as
often as occasion therefor shall arise, it being agreed by Mortgagor that the
exercise or failure to exercise any of same shall in no event be construed as a
waiver or release thereof or of any other right, remedy, or recourse; (iv) shall
be nonexclusive of any other right, power or remedy which Mortgagee may have
against Mortgagor pursuant to this Mortgage, the Loan Agreement or the other
Loan Documents, or otherwise available at law or in equity; (v) shall not be
conditioned upon Mortgagee exercising or pursuing any remedy in relation to the
Mortgaged Property prior to Mortgagee bringing suit to recover the Debt; and
(vi) in the event Mortgagee elects to bring suit on the Debt and obtains a
judgment against Mortgagor prior to exercising any remedies in relation to the
Mortgaged Property, all liens and security interests, including the lien of this
Mortgage, shall remain in full force and effect and may be exercised thereafter
at Mortgagee’s option.

     

    
      
        
        

      

      
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    (k)  Election of
Remedies.
Mortgagee may release, regardless of consideration, any part of the Mortgaged
Property without, as to the remainder, in any way impairing, affecting,
subordinating, or releasing the lien or security interests evidenced by this
Mortgage or the other Loan Documents or affecting the obligations of Mortgagor
or any other party to pay the Debt. For payment of the Debt, Mortgagee may
resort to any collateral securing the payment of the Debt in such order and
manner as Mortgagee may elect. No collateral taken by Mortgagee shall in any
manner impair or affect the lien or security interests given pursuant to the
Loan Documents, and all collateral shall be taken, considered, and held as
cumulative.

     

    (l)  Bankruptcy
Acknowledgment. If the
Mortgaged Property or any portion thereof or any interest therein becomes
property of any bankruptcy estate or subject to any state or federal insolvency
proceeding, or in the event of the filing of any voluntary or involuntary
petition under the Bankruptcy Code by or against Mortgagor then Mortgagee shall
immediately become entitled, in addition to all other relief to which Mortgagee
may be entitled under this Mortgage, to obtain (i) an order from any
bankruptcy court or other appropriate court granting immediate relief from the
automatic stay pursuant to § 362 of the Bankruptcy Code so as to permit
Mortgagee to pursue its rights and remedies against Mortgagor as provided under
this Mortgage and all other rights and remedies of Mortgagee at law and in
equity under applicable state law, and (ii) an order from the Bankruptcy
Court prohibiting Mortgagor’s use of all “cash collateral” as defined under
§ 363 of the Bankruptcy Code. Mortgagor shall not assert or request any
other party to assert, that the automatic stay under § 362 of the
Bankruptcy Code operate or be interpreted to stay, interdict, condition, reduce
or inhibit the ability of Mortgagee to enforce any rights it has by virtue of
this Mortgage, or any other rights that Mortgagee has, whether now or hereafter
acquired, against any guarantor of the Debt. Mortgagor shall not seek a
supplemental stay or any other relief, whether injunctive or otherwise, pursuant
to § 105 of the Bankruptcy Code or any other provision therein to stay,
interdict, condition, reduce or inhibit the ability of Mortgagee to enforce any
rights it has by virtue of this Mortgage against any guarantor of the Debt. Any
bankruptcy petition or other action taken by Mortgagor to stay, condition, or
inhibit Mortgagee from exercising its remedies are hereby admitted by Mortgagor
to be in bad faith and Mortgagor further admits that Mortgagee would have just
cause for relief from the automatic stay in order to take such actions
authorized under state law.

     

    (m)  Application of
Proceeds. The
proceeds from any sale, lease, or other disposition made pursuant to this
Mortgage, or the proceeds from the surrender of any insurance policies pursuant
hereto, or any Rents collected by Mortgagee from the Mortgaged Property or the
Impositions and Insurance Reserve or other Reserves under the Loan Agreement or
sums received pursuant to Section 6 hereof, or proceeds from insurance
which Mortgagee elects to apply to the Debt pursuant to Section 3 hereof,
shall be applied by Mortgagee to the Debt in such order, priority and
proportions as Mortgagee in its sole discretion shall determine.

     

    
      
        
        

      

      
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    18.  Security
Agreement. This
Mortgage is both a real property mortgage and a “security agreement” within the
meaning of the Uniform Commercial Code. The Mortgaged Property includes both
real and personal property and all other rights and interests, whether tangible
or intangible in nature, of Mortgagor in the Mortgaged Property. Mortgagor by
executing and delivering this Mortgage has granted and hereby grants to
Mortgagee, as security for the Debt, a security interest in the Mortgaged
Property to the full extent that the Mortgaged Property may be subject to the
Uniform Commercial Code (said portion of the Mortgaged Property so subject to
the Uniform Commercial Code being called in this Section 18 the “Collateral”).
Mortgagor hereby agrees to execute and deliver to Mortgagee, in form and
substance reasonably satisfactory to Mortgagee, such financing statements and
such further assurances as Mortgagee may from time to time reasonably consider
necessary to create, perfect, and preserve Mortgagee’s security interest herein
granted. This Mortgage shall also constitute a “fixture filing” for the purposes
of the Uniform Commercial Code as to all or any part of the Mortgaged Property
which now or hereafter constitute “fixtures” under the Uniform Commercial Code.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Mortgage. If an Event of Default shall occur, Mortgagee, in addition to any
other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Mortgagee may
deem necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Mortgagee, Mortgagor shall at its expense assemble the
Collateral and make it available to Mortgagee at a convenient place acceptable
to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all expenses,
including legal expenses and attorneys’ fees, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least five (5) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after Mortgagee’s request shall execute, file and
record such Uniform Commercial Code forms as are necessary to maintain the
priority of Mortgagee’s lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Mortgagee shall require the filing or recording of additional
Uniform Commercial Code forms or continuation statements, Mortgagor shall,
promptly after request, execute, file and record such Uniform Commercial Code
forms or continuation statements as Mortgagee shall deem necessary, and shall
pay all expenses and fees in connection with the filing and recording thereof,
it being understood and agreed, however, that no such additional documents shall
increase Mortgagor’s obligations under the Note, this Mortgage and the other
Loan Documents. Mortgagor hereby irrevocably appoints Mortgagee as its
attorney-in-fact, coupled with an interest upon Mortgagor’s failure to do so
within five (5) Business Days after request by Mortgagee, to file with the
appropriate public office on its behalf any financing or other statements signed
only by Mortgagee, as Mortgagor’s attorney-in-fact, in connection with the
Collateral covered by this Mortgage. Notwithstanding the foregoing, Mortgagor
shall appear and defend in any action or proceeding which affects or purports to
affect the Mortgaged Property and any interest or right therein, whether such
proceeding affects title or any other rights in the Mortgaged Property (and in
conjunction therewith, Mortgagor shall fully cooperate with Mortgagee in the
event Mortgagee is a party to such action or proceeding).

     

    
      
        
        

      

      
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    19.  Actions and
Proceedings. Upon the
occurrence and during the continuance of an Event of Default, Mortgagee has the
right to appear in and defend any action or proceeding brought with respect to
the Mortgaged Property and to bring any action or proceeding, in the name and on
behalf of Mortgagor, which Mortgagee, in its discretion, decides should be
brought to protect its interest in the Mortgaged Property. Mortgagee shall, at
its option, be subrogated to the lien of any mortgage or other security
instrument discharged in whole or in part by the Debt, and any such subrogation
rights shall constitute additional security for the payment of the
Debt.

     

    20.  Waiver of Setoff and
Counterclaim, Marshalling, Statute of Limitations, Automatic or Supplemental
Stay, Etc. 

     

    (a)  All
amounts due under this Mortgage, the Note and the other Loan Documents shall be
payable without setoff, counterclaim or any deduction whatsoever. Mortgagor
hereby waives the right to assert a setoff, counterclaim or deduction in any
action or proceeding in which Mortgagee is a participant, or arising out of or
in any way connected with this Mortgage, the Note, any of the other Loan
Documents, or the Debt.

     

    (b)  Mortgagor
hereby expressly, irrevocably, and unconditionally waives and releases, to the
extent permitted by law (i) the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling, sale in the inverse order of alienation, or any other
right to direct in any manner the order or sale of any of the Mortgaged Property
in the event of any sale hereunder of the Mortgaged Property or any part thereof
or any interest therein; (ii) any and all rights of redemption from sale under
any order or decree of foreclosure of this Mortgage on behalf of Mortgagor, and
on behalf of each and every person acquiring any interest in or title to the
Mortgaged Property subsequent to the date of this Mortgage and on behalf of all
persons to the extent permitted by applicable law; and (iii) all benefits that
might accrue to Mortgagor by virtue of any present or future law exempting the
Mortgaged Property from attachment, levy or sale on execution or providing for
any appraisement, valuation, stay of execution, exemption from civil process,
redemption, or extension of time for payment. Mortgagee shall not be under any
obligation to marshal any assets in favor of any Person or against or in payment
of any or all of the Obligations.

     

    (c)  To the
extent permitted by applicable law, Mortgagee’s rights hereunder shall continue
even to the extent that a suit for collection of the Debt, or part thereof, is
barred by a statute of limitations. Mortgagor hereby expressly waives and
releases to the fullest extent permitted by law, the pleading of any statute of
limitations as a defense to payment of the Debt.

     

    
      
        
        

      

      
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    21.  Recovery of Sums Required to
Be Paid.
Mortgagee shall have the right from time to time to take action to recover any
sum or sums which constitute a part of the Debt as the same become due, without
regard to whether or not the balance of the Debt shall be due, and without
prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Mortgagor
existing at the time such earlier action was commenced.

     

    22.  Handicapped
Access. 

     

    (a)  Mortgagor
agrees that the Mortgaged Property shall at all times comply in all material
respects with applicable requirements of the Americans with Disabilities Act of
1990, the Fair Housing Amendments Act of 1988, all state and local laws and
ordinances related to handicapped access and all rules, regulations, and orders
issued pursuant thereto including, without limitation, the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities
(collectively “Access
Laws”).

     

    (b)  Mortgagor
agrees to give prompt notice to Mortgagee of the receipt by Mortgagor of any
complaints related to violation of any Access Laws and of the commencement of
any proceedings or investigations which relate to compliance with applicable
Access Laws but only to the extent that such complaints, proceedings or
investigations, if adversely determined, could have a Material Adverse
Effect.

     

    23.  Indemnification. In
addition to the payment of expenses as required elsewhere herein and in the
other Loan Documents, Mortgagor agrees to indemnify, defend, protect, pay and
hold Mortgagee, its successors and assigns (including, without limitation, the
trustee and/or the trust under any trust agreement executed in connection with
any Securitization backed in whole or in part by the Loan and any other person
which may hereafter be the holder of the Note or any interest therein), and the
officers, directors, stockholders, partners, members, employees, agents, and
Affiliates of Mortgagee and such successors and assigns (collectively, the
“Indemnified
Parties”)
harmless from and against any and all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation
reasonable attorneys’ fees and expenses) (collectively, the “Indemnified
Claims”),
imposed upon or incurred by or asserted against any Indemnified Party by reason
of any of the following (to the extent that insurance proceeds paid to the
applicable Indemnified Party on account of the following shall be inadequate):
(i) ownership of the Mortgage, the Mortgaged Property or any interest therein or
receipt of any rents; (ii) any accident, injury to or death of persons or loss
of or damage to property occurring in, on or about the Mortgaged Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (iii) any use, nonuse or condition in, on or
about the Mortgaged Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways;
(iv) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof; (v) any failure of the Premises or the Improvements to comply with any
applicable law, statute, code, ordinance, rule or regulation; (vi) any Event of
Default by Mortgagor under this Mortgage, the Loan Agreement or any other Loan
Documents; (vii) any actions taken by any Indemnified Party in the
enforcement of this Mortgage and the other Loan Documents in accordance with
their respective terms; (viii) any failure to act on the part of any
Indemnified Party hereunder; (ix) any representation or warranty made in the
Note, this Mortgage or any of the other Loan Documents being false or misleading
in any material respect as of the date such representation or warranty was made;
(x) any claim by brokers, finders or similar persons claiming to be entitled to
a commission in connection with any Lease or other transaction involving the
Mortgaged Property or any part thereof under any legal requirement or any
liability asserted against Mortgagee with respect thereto; and (xi) the claims
of any lessee of any or any portion of the Mortgaged Property or any person
acting through or under any lessee or otherwise arising under or as a
consequence of any Lease. Notwithstanding the foregoing, Mortgagor shall not be
liable for any Indemnified Claims arising (A) from the gross negligence or
willful misconduct of any Indemnified Party or (B) under clauses (i) - (v) above
to the extent the facts, events or circumstances giving rise to such Indemnified
Claim arise after the date that any Indemnified Party takes title to the
Mortgaged Property by foreclosure, deed-in-lieu thereof, the exercise of any
power of sale or otherwise. Any amounts payable to an Indemnified Party by
reason of the application of this Section 23 shall be secured by this Mortgage
shall become immediately due and payable and shall bear interest at the Default
Rate from the date loss or damage is sustained by such Indemnified Party until
paid. The obligations and liabilities of Mortgagor under this paragraph shall
survive the termination, satisfaction, or assignment of this Mortgage and the
exercise by Mortgagee of any of its rights or remedies hereunder, including, but
not limited to, the acquisition of the Mortgaged Property by foreclosure or a
conveyance in lieu of foreclosure.

     

    
      
        
        

      

      
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    24.  Notices. Any
notice, demand, statement, request or consent made hereunder shall be in
writing, addressed to the intended recipient at its address set forth in the
Loan Agreement, and shall be made and deemed given in accordance with the terms
of the Loan Agreement.

     

    25.  Authority. (a)
Mortgagor (and the undersigned representative of Mortgagor, if any) has full
power, authority and right to execute, deliver and perform its obligations
pursuant to this Mortgage, and to mortgage, give, grant, bargain, sell, alien,
enfeoff, convey, confirm, warrant, pledge, hypothecate and assign the Mortgaged
Property pursuant to the terms hereof and to keep and observe all of the terms
of this Mortgage on Mortgagor’s part to be performed; and (b) Mortgagor
represents and warrants that Mortgagor is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended
and the related Treasury Department regulations.

     

    26.  Waiver of
Notice.
Mortgagor shall not be entitled to any notices of any nature whatsoever from
Mortgagee except with respect to matters for which this Mortgage or the Loan
Agreement specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage or the Loan Agreement do not specifically and expressly
provide for the giving of notice by Mortgagee to Mortgagor.

     

    27.  Remedies of
Mortgagor. In the
event that a claim or adjudication is made that Mortgagee has acted unreasonably
or unreasonably delayed acting in any case where by law or under the Note, this
Mortgage or the other Loan Documents, it has an obligation to act reasonably or
promptly, Mortgagee shall not be liable for any monetary damages, and
Mortgagor’s remedies shall be limited to injunctive relief or declaratory
judgment.

     

    
      
        
        

      

      
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    28.  Sole Discretion of
Mortgagee. Whenever
pursuant to this Mortgage or the other Loan Documents, Mortgagee exercises any
right given to it to consent, approve or disapprove, or any arrangement or term
is to be satisfactory to Mortgagee, the decision of Mortgagee to consent,
approve or disapprove, or to decide that arrangements or terms are satisfactory
or not satisfactory shall be in the sole discretion of Mortgagee and shall be
final and conclusive, except as may be otherwise expressly and specifically
provided herein. Notwithstanding anything to the contrary contained herein, it
shall be understood and agreed that any such consent, approval, or disapproval
may be conditioned, among other things, upon Mortgagee obtaining confirmation by
the Rating Agencies that the action or other matter subject to Mortgagee’s
consent, approval, or disapproval shall not adversely affect the rating of any
securities issued or to be issued in connection with any Secondary Market
Transaction, notwithstanding that such condition may not be expressly set forth
in the provision or provisions of the Loan Documents which require that
Mortgagee’s consent be obtained.

     

    29.  Non-Waiver. The
failure of Mortgagee to insist upon strict performance of any term hereof shall
not be deemed to be a waiver of any term of this Mortgage. Mortgagor shall not
be relieved of Mortgagor’s obligations hereunder by reason of (a) the failure of
Mortgagee to comply with any request of Mortgagor or Guarantor to take any
action to foreclose this Mortgage or otherwise enforce any of the provisions
hereof or of the Note or other Loan Documents, (b) the release, regardless of
consideration, of the whole or any part of the Mortgaged Property, or of any
person liable for the Debt or any portion thereof, or (c) any agreement or
stipulation by Mortgagee extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Mortgage, or the other Loan Documents.
Mortgagee may resort for the payment of the Debt to any other security held by
Mortgagee in such order and manner as Mortgagee, in its discretion, may elect.
Mortgagee may take action to recover the Debt, or any portion thereof, or to
enforce any covenant hereof without prejudice to the right of Mortgagee
thereafter to foreclosure this Mortgage. The rights and remedies of Mortgagee
under this Mortgage shall be separate, distinct and cumulative and none shall be
given effect to the exclusion of the others. No act of Mortgagee shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision. Mortgagee shall not be limited exclusively to
the rights and remedies herein stated but shall be entitled to every right and
remedy now or hereafter afforded at law or in equity.

     

    30.  Liability. Subject
to the provisions hereof requiring Mortgagee’s consent to any transfer of the
Mortgaged Property, this Mortgage shall be binding upon and inure to the benefit
of Mortgagor and Mortgagee and their respective successors and assigns
forever.

     

    31.  Inapplicable
Provisions. If any
term, covenant or condition of this Mortgage is held to be invalid, illegal or
unenforceable in any respect, this Mortgage shall be construed without such
provision.

     

    32.  Headings,
Etc. The
headings and captions of various Sections of this Mortgage are for convenience
of reference only and are not to be construed as defining or limiting, in any
way, the scope or intent of the provisions hereof.

     

    
      
        
        

      

      
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    33.  Counterparts. This
Mortgage may be executed in any number of counterparts each of which shall be
deemed to be an original but all of which when taken together shall constitute
one agreement.

     

    34.  Definitions. Unless
the context clearly indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Mortgage may be used interchangeably in
singular or plural form and the word “Mortgagor” shall mean “each Mortgagor and
any subsequent owner or owners of the Mortgaged Property or any part thereof or
any interest therein,” the word “Mortgagee” shall mean “Mortgagee and any
subsequent holder of the Note,” the word “Debt” shall mean “the Note and any
other evidence of indebtedness secured by this Mortgage,” the word “person”
shall include an individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, and any other entity, and the
words “Mortgaged Property” shall include any portion of the Mortgaged Property
and any interest therein and the words “attorneys’ fees” shall include any and
all reasonable attorneys’ fees, paralegal and law clerk fees, including, but not
limited to, fees at the pre-trial, trial and appellate levels incurred or paid
by Mortgagee in protecting its interest in the Mortgaged Property and Collateral
and enforcing its rights hereunder. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.

     

    35.  Homestead.
Mortgagor hereby waives and renounces all homestead and exemption rights
provided by the constitution and the laws of the United States and of any state,
in and to the Mortgaged Property as against the collection of the Debt, or any
part hereof.

     

    36.  Assignments.
Mortgagee shall have the right to assign or transfer its rights under this
Mortgage and the other Loan Documents without limitation, including, without
limitation, the right to assign or transfer its rights to a servicing agent. Any
assignee or transferee shall be entitled to all the benefits afforded Mortgagee
under this Mortgage and the other Loan Documents. Mortgagee agrees to provide
Mortgagor with notice of any such assignment; provided, however, that
Mortgagor’s consent shall not be required in connection with any such assignment
and no delay or failure by Mortgagee to provide such notice shall limit the
effectiveness of such assignment.

     

    37.  Survival of Obligations;
Survival of Warranties and Representations. Each and
all of the covenants, obligations, representations and warranties of Mortgagor
shall survive the execution and delivery of the Loan Documents and the transfer
or assignment of this Mortgage (including, without limitation, any transfer of
the Mortgage by Mortgagee of any of its rights, title and interest in and to the
Mortgaged Property to any party, whether or not affiliated with
Mortgagee).

     

    38.  Covenants Running with the
Land. All
covenants, conditions, warranties, representations and other obligations
contained in this Mortgage and the other Loan Documents are intended by
Mortgagor and Mortgagee to be, and shall be construed as, covenants running with
the Mortgaged Property until the lien of this Mortgage has been fully released
by Mortgagee, pursuant to the terms hereof.

     

    39.  Governing Law;
Jurisdiction. THIS
MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW
YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL
TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS
AND SECURITY INTERESTS CREATED PURSUANT TO THIS MORTGAGE SHALL BE GOVERNED BY
THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED. 

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    40.  Time of
Essence. Time is
of the essence as to all of the terms, covenants and condition of this Mortgage
and the other Loan Documents.

     

    41.  No Third-Party
Beneficiaries. The
provisions of this Mortgage and the other Loan Documents are for the benefit of
Mortgagor and Mortgagee and shall not inure to the benefit of any third party
(other than any successor or assignee of Mortgagee or permitted assignee of
Mortgagor). This Mortgage and the other Loan Documents shall not be construed as
creating any rights, claims or causes of action against Mortgagee or any of its
officers, directors, agents or employees in favor of any party other than
Mortgagor including but not limited to any claims to any sums held in the
Impositions and Insurance Reserve or any other Reserves.

     

    42.  Relationship of
Parties. The
relationship of Mortgagee and Mortgagor is solely that of debtor and creditor,
and Mortgagee has no fiduciary or other special relationship with the Mortgagor,
and no term or condition of any of the Loan Documents shall be construed to be
other than that of debtor and creditor. Mortgagor represents and acknowledges
that neither the Loan Documents nor any course of dealing between the parties
creates any partnership or joint venture between Mortgagor and Mortgagee or any
other person, nor does it provide for any shared appreciation rights or other
equity participation interest.

     

    43.  Successors and
Assigns. This
Mortgage shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that Mortgagor may not
assign its rights or obligations hereunder except as expressly provided in
Section 9 hereof or as permitted under the Loan Agreement.

     

    44.  Investigations. Any and
all representations, warranties, covenants and agreements made in this Mortgage
(and/or in other Loan Documents) shall survive any investigation or inspection
made by or on behalf of Mortgagee. 

     

    45.  Assignment of
Leases.
Mortgagor acknowledges and confirms that it has executed and delivered to
Mortgagee the Assignment of Leases and Rents (the “Assignment of
Leases”)
intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or the
remedies provided under the Assignment of Leases, Mortgagor hereby assigns to
Mortgagee, as further security for the Debt and the Obligations, the Leases and
Rents. While any Event of Default exists, Mortgagee shall be entitled to
exercise any or all of the remedies provided in the Assignment of Leases and in
Section 17 hereof, including, without limitation, the right to have a
receiver appointed. If any conflict or inconsistency exists between the
assignment of the Leases and Rents in this Mortgage and the absolute assignment
of the Leases and the Rents in the Assignment of Leases, the terms of the
Assignment of Leases shall control. Nevertheless, subject to the terms of this
Section 45 and 17(b) hereof and the Loan Agreement, Lender grants to Mortgagor a
revocable license to collect and receive the Rents. For so long as an Event of
Default exists, Mortgagor shall hold the Rents, or a portion thereof sufficient
to discharge all current sums due on the Debt, for use in the payment of such
sums.

     

    
      
        
        

      

      
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    46.  Waiver of Right to Trial by
Jury. EACH OF
MORTGAGOR AND MORTGAGEE HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY EACH OF MORTGAGOR AND MORTGAGEE, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
MORTGAGOR.

     

    47.  Expenses and Attorneys’
Fees.
Mortgagor agrees to promptly pay all reasonable fees, costs and expenses
incurred by Mortgagee in connection with any matters contemplated by or arising
out of this Mortgage and the other Loan Documents, including, without
limitation, reasonable fees, costs and expenses (including reasonable attorneys’
fees and fees of other professionals retained by Mortgagee) incurred in any
action to enforce this Mortgage or the other Loan Documents or to collect any
payments due from Mortgagor under this Mortgage, the Loan Agreement, the Note or
any other Loan Document or incurred in connection with any refinancing or
restructuring of the credit arrangements provided under this Mortgage incurred
in connection with a “workout” or in connection with any insolvency or
bankruptcy proceedings with respect to Mortgagor, and all such fees, costs and
expenses shall be part of the Obligations, payable on demand.

     

    48.  Amendments and
Waivers. Except
as otherwise provided herein, no amendment, modification, termination or waiver
of any provision of this Mortgage, the Note or any other Loan Document, or
consent to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by Mortgagee and any other party to be
charged. Each amendment, modification, termination or waiver shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Mortgagor in any case shall entitle Mortgagor
to any other or further notice or demand in similar or other
circumstances.

     

    49.  Servicer.
Mortgagee shall have the right at any time throughout the term of the Loan to
designate or appoint one or more Servicers (as defined in the Loan Agreement) to
administer this Mortgage and the other Loan Documents, and to change or replace
any Servicer. All of Mortgagee’s rights under this Mortgage and the other Loan
Documents may be exercised by any such Servicer designated by Mortgagee. Any
such Servicer shall be entitled to the benefit of all obligations of Mortgagor
in favor of Mortgagee.

     

    50.  Copy of
Mortgage.
MORTGAGOR REPRESENTS AND WARRANTS THAT IT HAS RECEIVED A TRUE COPY OF THIS
MORTGAGE WITHOUT CHARGE.

     

    
      
        
        

      

      
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    51.  Limitation on
Recourse. The
obligations of Mortgagor hereunder are subject to limitations on recourse as
provided in Article XII of the Loan Agreement.

     

    52.  Satisfaction of
Mortgage. Upon
payment of the Debt in full, Mortgagee, at Mortgagor’s sole cost and upon
Mortgagor’s request, shall execute and deliver to Mortgagor a satisfaction or
reconveyance of Mortgage, duly acknowledged and in recordable form, UCC-3
financing statements terminating any UCC-1 financing statements filed by
Mortgagee relating to the Mortgaged Property, and such other documents or
instruments as may be required to release the Lien of the Loan Documents from
the Mortgaged Property.

     

    53.  Conflict. The
terms and provisions of this Mortgage shall be construed to the extent possible
consistently with those of the Loan Agreement as being in addition to and
supplementing the provisions of the Loan Agreement and the other Loan Documents;
however, in the event that notwithstanding such construction there is an
irresolvable conflict between the provisions of this Mortgage and the provisions
of the Loan Agreement, the provisions of the Loan Agreement shall govern and
control.

     

    54.  State Specific
Provisions.


     

    (a)  Inconsistencies. In the
event of any inconsistencies between the terms and conditions of this Article 18
and the other provisions of this Security Instrument, the terms and conditions
of this Article 18 shall control and be binding.

     

    (b)  Special Michigan
Provisions. The
following provisions shall also constitute an integral part of this Security
Instrument. Furthermore, in the event that any prior provisions of this Security
Instrument conflict with the following provisions of this Section, the
provisions of this Section shall control and shall be deemed a modification of
or amendment to the section or provision at issue.

     

    (i)  Additional Provisions
Regarding Foreclosure by Power of Sale.
Mortgagor acknowledges that, after the occurrence and during the continuance of
an Event of Default, Lender is authorized and empowered to sell the Property or
to cause the same to be sold, and to convey the same to the purchaser in any
lawful manner, including that provided by Chapter 32 of the Revised Judicature
Act of Michigan, entitled “Foreclosure of Mortgages by Advertisement,” (the
“Michigan Statute”) which permits Lender to sell the Property without affording
Mortgagor a hearing or giving Mortgagor actual personal notice. The only notice
required under such Chapter 32 is to publish notice in a local newspaper and to
post a copy of the notice at the Property. In the event of a public sale, the
Property, at the option of the Lender, may be sold as one parcel. MORTGAGOR
HEREBY WAIVES ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES
AND THE STATE OF MICHIGAN TO A HEARING PRIOR TO SALE IN CONNECTION WITH
FORECLOSURE OF THIS SECURITY INSTRUMENT BY ADVERTISEMENT AND ALL NOTICE
REQUIREMENTS EXCEPT AS SET FORTH IN THE MICHIGAN STATUTE.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    (ii)  Lender’s Statutory Rights
Regarding Leases and Rents. In
addition to all other rights of Mortgagor provided for herein or in any other
Loan Documents, Lender shall be entitled to all of the rights and benefits
conferred by Act 210 of the Michigan Public Acts of 1953 as amended (MCL
554.231, et seq.).

     

    (iii)  Construction
Liens. All
references in this Security Instrument or in any of the other Loan Documents to
mechanic’s liens, or materialman’s liens, or similar liens shall be deemed to
include “construction liens” as defined in MCL 570.1103(3).

     

    (iv)  Waste. Subject
to the provisions of Section 3.6 hereof and the applicable provisions of the
Loan Agreement, if Mortgagor shall fail to pay any Impositions, the same shall
constitute waste as provided by MCL 600.2927. Mortgagor consents to the
appointment of a receiver under said statute if Lender elects to seek such
relief.

     

    (v)  Future
Advances. This
Security Instrument secures future advances and is a future advance mortgage
under Act No. 348 of the Michigan Public Acts of 1990 (MCL 565.901 et. seq.).
All future advances under the Note, this Security Instrument and the other Loan
Documents shall have the same priority as if the future advance was made on the
date that this Security Instrument was recorded. [Insert Appropriate State
Specific Provisions]

     

    55.  Contemporaneous Security
Instruments. THIS
MORTGAGE IS MADE CONTEMPORANEOUSLY WITH THE OTHER SECURITY INSTRUMENTS DATED AS
OF THE DATE HEREOF GIVEN BY ADDITIONAL BORROWERS TO MORTGAGEE, COVERING
PROPERTIES LOCATED IN THE STATE OF MICHIGAN (the “Other Security
Instruments”). The
Other Security Instruments further secure the obligations of Mortgagor to
Mortgagee under the Note. Upon the occurrence of an Event of Default, Mortgagee
may proceed under this Mortgage and/or the Other Security Instruments against
any of such property and/or the Mortgaged Property in one or more parcels and in
such manner and order as Mortgagee shall elect. Mortgagor hereby irrevocably
waives and releases, to the extent permitted by law, and whether now or
hereafter in force, any right to have the Mortgaged Property and/or the property
covered by the Other Security Instruments marshalled upon any foreclosure of
this Mortgage or the Other Security Instruments. 

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; 

    SIGNATURE
PAGE FOLLOWS]


    
      
        
        

      

      
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    IN
WITNESS WHEREOF, Mortgagor has executed this instrument as of the day and year
first above written.

    
      
         

        
          	 	
                  
                    MORTGAGOR:

                  

                
	 	 	 
	 	
                  SCOTSDALE MI
      LLC, a Delaware
      limited liability
      company

                
	 
 	 	 
	 	By:  	LVP
      Michigan Multifamily Portfolio LLC, a Delaware limited liability company,
      
	 	 	its sole Managing Member


        

         

        
          
            	 	 By:	/s/ David
      Lichtenstein
	 	 Name:	David
      Lichtenstein
	 	 Title:	President


          

           

        

      

    

    
      
        
        

      

      
        
        

        
          

        

      

       

    


    ACKNOWLEDGMENT


     

    
      	
              STATE
      OF 

            	 	
              )

            
	 	 	
              :
      ss.:

            
	
              COUNTY
      OF 

            	 	
              )
      :

            


    

    


    The
foregoing instrument was acknowledged before me in the County of _____________,
State of ________________________ this 30 day of June, 2006, by
__________________, the ________________ of SCOTSDALE MI LLC, a Delaware limited
liability company.

     

    


    Notary
Public, _____County, ______

    Acting in
the County of ________, ______

    My
commission expires:   

    


    This
instrument was prepared by 

    and
return when recorded to:

    


    Sidley
Austin LLP

    One S.
Dearborn St.

    Chicago,
Illinois 60603

    Attn:
Rebecca Janovsky, Esq.


    
      
        
        

      

      
        
        

        
          

        

      

       

    


    EXHIBIT A

    


    Legal Description of
Premises