Exhibit
10.98


 


RECORD AND RETURN TO:


 


Cassin Cassin & Joseph LLP


711 Third Avenue, 20th Floor


New York, New York 10017


Attn:  Carol M.
Joseph, Esq.


 


 


MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING


 


 




 


 





INLAND
AMERICAN MALDEN, L.L.C., a
 Delaware limited liability company, as mortgagor
(Borrower)


 


for the benefit of


 


NOMURA
CREDIT & CAPITAL, INC. ,

as mortgagee, and its successors and assigns (Lender)


 






 


THE COLLATERAL IS
OR INCLUDES FIXTURES


 


This document serves as a fixture filing under the Uniform Commercial Code


 


Borrower’s Organizational Number:  4150450


Borrower’s Federal Identification No.:  20-4780172


 


Date:                                                                    As of June 8, 2006


Location:                                              Malden Stop & Shop

99 Charles Street

Malden, Massachusetts


 


County:                                                     Middlesex


 




 





 

















 


MORTGAGE,
ASSIGNMENT OF RENTS,

SECURITY AGREEMENT AND FIXTURE
FILING


 


THIS MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Mortgage”) is made as of this 8th day
of June,
2006, by INLAND AMERICAN MALDEN,
L.L.C., a Delaware limited liability company, having its principal
place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, as
mortgagor (“Borrower”), for the benefit of
NOMURA CREDIT & CAPITAL, INC.,
a Delaware corporation, its successors and assigns, having an address at 2 World
Financial Center, Bldg. B., New York, New York 10281, as mortgagee (“Lender”).


 


W I  T  N  E  S  S
E  T  H:


 


WHEREAS, this Mortgage is
given to secure a loan (the “Loan”) in the
principal sum of TWELVE MILLION SEVEN HUNDRED FIFTY-TWO
THOUSAND SEVEN HUNDRED FORTY-TWO AND 00/100 DOLLARS ($12,752,742.00)
advanced pursuant to that certain Loan Agreement dated as of the date hereof
between Borrower and Lender (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Loan
Agreement”, and evidenced by that certain
Promissory Note dated the date hereof made by Borrower to Lender (such Note,
together with all extensions, renewals, replacements, restatements or
modifications thereof being hereinafter referred to as the “Note”), which
Note provides, among other things, for final payment of principal and interest
thereunder, if not sooner paid or payable as provided therein, to be due on June 11, 2031;


 


WHEREAS, Borrower desires
to secure the payment of the Debt (as defined in the Loan
Agreement) and the performance of all of its obligations under the Note, the
Loan Agreement and the other Loan Documents; and


 


WHEREAS, this Mortgage is
that certain “Deed of Trust” or “Mortgage” as defined in the Loan Agreement,
and payment, fulfillment, and performance by Borrower of its obligations
thereunder and under the other Loan Documents are, subject to the  limitations set forth herein, secured hereby, and each and
every term and provision of the Loan Agreement and the Note, including the
rights, remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties therein, are hereby incorporated
by reference herein as though set forth in full and shall be considered a part
of this Mortgage (the Loan Agreement, the Note, this Mortgage, that certain
Assignment of Leases and Rents of even date herewith made by Borrower in favor
of Lender (the “Assignment of Leases”)
and all other documents evidencing or securing the Debt are hereinafter referred
to collectively as the “Loan Documents”).


 


NOW THEREFORE, in
consideration of the making of the Loan by Lender and the covenants,
agreements, representations and warranties set forth in this Mortgage:


 

















 


ARTICLE 1


GRANTS OF SECURITY


 


Section 1.1.            Property Mortgaged.  Borrower does hereby irrevocably mortgage,
grant, bargain, pledge, assign, warrant, transfer and convey to Lender and its
successors and assigns, WITH POWER OF SALE and grant a security interest to
Lender its successor and assigns, in the following property, rights, interests
and estates now owned, or hereafter acquired by Borrower (collectively, the “Property”):


 


(a)           Land.  The real
property described in Exhibit A
attached hereto and made a part hereof (the “Land”);


 


(b)           Additional Land.  All
additional lands, estates and development rights hereafter acquired by Borrower
for use in connection with the Land and the development of the Land and all
additional lands and estates therein which may, from time to time, by
supplemental mortgage or otherwise be expressly made subject to the lien of
this Mortgage;


 


(c)           Improvements.  The
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter erected
or located on the Land (collectively, the “Improvements”);


 


(d)           Easements.  All
easements, rights-of-way or use, rights, 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, servitudes, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way now or hereafter belonging,
relating or pertaining to the Land 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 Land,
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 Borrower of, in and
to the Land and the Improvements and every part and parcel thereof, with the
appurtenances thereto;


 


(e)           Equipment.  All “equipment,”
as such term is defined in Article 9 of the Uniform Commercial Code, now
owned or hereafter acquired by Borrower, which is used at or in connection with
the Improvements or the Land or is located thereon or therein (including, but
not limited to, all machinery, equipment, furnishings, and electronic
data-processing and other office equipment now owned or hereafter acquired by
Borrower and any and all additions, substitutions and replacements of any of
the foregoing), together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto (collectively, the “Equipment”).  Notwithstanding the foregoing, Equipment
shall not include any property belonging to tenants under leases except to the
extent that Borrower shall have any right or interest therein;


 


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(f)            Fixtures.  All
Equipment now owned, or the ownership of which is hereafter acquired, by
Borrower which is so related to the Land and Improvements forming part of the
Property that it is deemed fixtures or real property under the law of the
particular state in which the Equipment is located, including, without
limitation, all building or construction materials intended for construction,
reconstruction, alteration or repair of or installation on the Property,
construction equipment, appliances, machinery, plant equipment, fittings,
apparatuses, fixtures and other items now or hereafter attached to, installed
in or used in connection with (temporarily or permanently) any of the
Improvements or the Land, including, but not limited to, engines, devices for
the operation of pumps, pipes, plumbing, cleaning, call and sprinkler systems,
fire extinguishing apparatuses and equipment, heating, ventilating, plumbing,
laundry, incinerating, electrical, air conditioning and air cooling equipment
and systems, gas and electric machinery, appurtenances and equipment, pollution
control equipment, security systems, disposals, dishwashers, refrigerators and
ranges, recreational equipment and facilities of all kinds, and water, gas,
electrical, storm and sanitary sewer facilities, utility lines and equipment
(whether owned individually or jointly with others, and, if owned jointly, to
the extent of Borrower’s interest therein) and all other utilities whether or
not situated in easements, all water tanks, water supply, water power sites,
fuel stations, fuel tanks, fuel supply, and all other structures, together with
all accessions, appurtenances, additions, replacements, betterments and
substitutions for any of the foregoing and the proceeds thereof (collectively,
the “Fixtures”).  Notwithstanding the foregoing, “Fixtures”
shall not include any property which tenants are entitled to remove pursuant to
leases except to the extent that Borrower shall have any right or interest
therein;


 


(g)           Personal Property.  All
furniture, furnishings, objects of art, machinery, goods, tools, supplies,
appliances, general intangibles, contract rights, accounts, accounts
receivable, franchises, licenses, certificates and permits, and all other
personal property of any kind or character whatsoever (as defined in and
subject to the provisions of the Uniform Commercial Code as hereinafter
defined), other than Fixtures, which are now or hereafter owned by Borrower and
which are located within or about the Land and the Improvements, together with
all accessories, replacements and substitutions thereto or therefor and the
proceeds thereof (collectively, the “Personal Property”),
and the right, title and interest of Borrower in and to any of the Personal
Property 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 Property is located (the “Uniform Commercial Code”),
superior in lien to the lien of this Mortgage and all proceeds and products of
the above;


 


(h)           Leases and Rents.  All
leases, subleases or sub-subleases, lettings, licenses, concessions or other
agreements (whether written or oral) pursuant to which any Person is granted a
possessory interest in, or right to use or occupy all or any portion of the
Land and the Improvements, and every modification, amendment or other agreement
relating to such leases, subleases, sub-subleases, or other agreements entered
into in connection with such leases, subleases, sub-subleases, or other
agreements and every guarantee, of the performance and observance of the
covenants, conditions and agreements to be performed and observed by the other
party thereto, heretofore or hereafter entered into, whether before or after
the filing by or


 


3

















 


against Borrower of any petition
for relief under 11 U.S.C. §101 et seq., as the same may be amended from time
to time (the “Bankruptcy Code”)
(collectively, the “Leases”)
and all right, title and interest of Borrower, its successors and assigns
therein and thereunder, including, without limitation, cash or securities
deposited thereunder to secure the performance by the lessees of their
obligations thereunder and all rents, additional rents, revenues, issues and
profits (including all oil and gas or other mineral royalties and bonuses) from
the Land and the Improvements whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under the Bankruptcy
Code (collectively, the “Rents”) and
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;


 


(i)            Condemnation Awards.  All
awards or payments, including interest thereon, which may heretofore and
hereafter be made with respect to the Property, whether from the exercise of
the right of eminent domain (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of the right), or for a change of
grade, or for any other injury to or decrease in the value of the Property
subject to the terms, provisions and conditions of the Loan Agreement;


 


(j)            Insurance Proceeds.  All
proceeds in respect of the Property under any insurance policies covering the
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 Property subject to the terms, provisions and conditions of the
Loan Agreement;


 


(k)           Tax Certiorari.  All
refunds, rebates or credits in connection with reduction in real estate taxes
and assessments charged against the Property as a result of tax certiorari or
any applications or proceedings for reduction;


 


(l)            Conversion.  All
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, proceeds of insurance and condemnation awards,
into cash or liquidation claims;


 


(m)          Rights.  Subject to
the terms, provisions and conditions of the Loan Agreement, the right, in the
name and on behalf of Borrower, to appear in and defend any action or
proceeding brought with respect to the Property and to commence any action or
proceeding to protect the interest of Lender in the Property;


 


(n)           Agreements.  All
agreements, contracts, certificates, instruments, franchises, permits,
licenses, plans, specifications and other documents, now or hereafter entered
into, and all rights therein and thereto, respecting or pertaining to the use,
occupation, construction, management or operation of the Land and any part
thereof and any Improvements or respecting any business or activity conducted
on the Land and any part thereof and all right, title and interest of Borrower
therein and thereunder, including, without limitation, the right, upon the
happening of any default hereunder, to receive and collect any sums payable to
Borrower thereunder, in each case, to the extent assignable;


 


4

















 


(o)           Trademarks.  All
tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and
records and all other general intangibles relating to or used in connection
with the operation of the Property (excluding, however, the name “Inland” and
any mark registered to The Inland Group, Inc., or any of its affiliates),
in each case, to the extent assignable;


 


(p)           Accounts.  All
reserves, escrows, and deposit accounts maintained by Borrower with respect to
the Property, including without limitation, all securities, investments,
property and financial assets held therein from time to time and all proceeds,
products, distributions or dividends or substitutions thereon and thereof; 


 


(q)           Letter of Credit.  All
letter-of-credit rights (whether or not the letter of credit is evidenced by a
writing) Borrower now has or hereafter acquires relating to the properties,
rights, titles and interests referred to in this Section 1.1;


 


(r)            Tort Claims.  All
commercial tort claims Borrower now has or hereafter acquires relating to the
properties, rights, titles and interests referred to in this Section 1.1;
and


 


(s)           Other Rights.  Any and
all other rights of Borrower in and to the items set forth in Subsections (a) through
(r) above.


 


AND without limiting any
of the other provisions of this Mortgage, to the extent permitted by applicable
law, Borrower expressly grants to Lender, as secured party, a security interest
in the portion of the Property which is or may be subject to the provisions of
the Uniform Commercial Code which are applicable to secured transactions; it
being understood and agreed that the Improvements and Fixtures are part and
parcel of the Land (the Land, the Improvements and the Fixtures collectively
referred to as the “Real Property”)
appropriated to the use thereof and, whether affixed or annexed to the Real
Property or not, shall for the purposes of this Mortgage be deemed conclusively
to be real estate and mortgaged hereby.


 


Section 1.2.            Assignment of Rents.  Borrower hereby absolutely and
unconditionally assigns to Lender all of Borrower’s right, title and interest
in and to all current and future Leases and Rents; it being intended by
Borrower that this assignment constitutes a present, absolute assignment and
not an assignment for additional security only. 
Nevertheless, subject to the terms of the Assignment of Leases and Section 7.1(h) of
this Mortgage, Lender grants to Borrower a revocable license to collect,
receive, use and enjoy the Rents. 
Borrower 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.


 


Section 1.3.            Security Agreement.  This Mortgage is both a real property deed of trust and a “security
agreement” within the meaning of the Uniform Commercial Code.  The Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Borrower in the Property.  By
executing and delivering this Mortgage, Borrower hereby grants to Lender, as
security for the Obligations (hereinafter defined), a security interest in the
Fixtures, the Equipment and the Personal Property and other


 


5

















 


property constituting the Property, whether
now owned or hereafter acquired, to the full extent that the Fixtures, the
Equipment and the Personal Property may be subject to the Uniform Commercial
Code (said portion of the Property so subject to the Uniform Commercial Code
being called the “Collateral”).  THE COLLATERAL IS OR INCLUDES FIXTURES.  If an Event of Default shall occur and be
continuing, Lender, 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 Lender may deem necessary for the care, protection and
preservation of the Collateral.  Upon
request or demand of Lender after the occurrence and during the continuance of
an Event of Default, Borrower shall, at its expense, assemble the Collateral
and make it available to Lender at a convenient place (at the Land if tangible
property) reasonably acceptable to Lender. 
Borrower shall pay to Lender on demand any and all expenses, including
reasonable legal expenses and attorneys’ fees, incurred or paid by Lender in
protecting its interest in the Collateral and in enforcing its rights hereunder
with respect to the Collateral after the occurrence and during the continuance
of an Event of Default.  Any notice of
sale, disposition or other intended action by Lender with respect to the Collateral
sent to Borrower in accordance with the provisions hereof at least ten (10) business
days prior to such action, shall, except as otherwise provided by applicable
law, constitute commercially reasonable notice to Borrower.  The proceeds of any disposition of the
Collateral, or any part thereof, may, except as otherwise required by
applicable law, be applied by Lender to the payment of the Debt in such
priority and proportions as Lender in its discretion shall deem proper.  Borrower’s (Debtor’s) principal place of
business is as set forth on page one hereof and the address of Lender
(Secured Party) is as set forth on page one hereof.


 


Section 1.4.            Fixture Filing.  Certain of the Property is or will become “fixtures”
(as that term is defined in the Uniform Commercial Code) on the Land, described
or referred to in this Mortgage, and this Mortgage, upon being filed for record
in the real estate records of the city or county wherein such fixtures are
situated, shall operate also as a financing statement filed as a fixture filing
in accordance with the applicable provisions of said Uniform Commercial Code
upon such of the Property that is or may become fixtures.


 


The Borrower hereby
authorizes the Lender at any time and from time to time to file any initial financing
statements, amendments thereto and continuation statements with or without the
signature of the Borrower as authorized by applicable law, as applicable to all
or part of the fixtures or Personal Property. 
For purposes of such filings, the Borrower agrees to furnish any
information requested by the Lender promptly upon request by the Lender.  The Borrower also ratifies its authorization
for the Lender to have filed any like initial financing statements, amendments
thereto and continuation statements, if filed prior to the date of this
Mortgage.  The Borrower hereby
irrevocably constitutes and appoints the Lender and any officer or agent of the
Lender, with full power of substitution, as its true and lawful attorneys-
in-fact with full irrevocable power and authority in the place and stead of the
Borrower or in the Borrower’s own name to execute in the Borrower’s name any
documents and otherwise to carry out the purposes


 


6

















 


of this Section 1.4, to the extent that the
Borrower’s authorization above is not sufficient.  To the extent permitted by law, the Borrower
hereby ratifies all acts said attorneys-in-fact have lawfully done in the past
or shall lawfully do or cause to be done in the future by virtue hereof.  This power of attorney is coupled with an
interest and shall be irrevocable.


 


Section 1.5.            Pledges of Monies Held.  Borrower hereby pledges to Lender any and all
monies now or hereafter held by Lender or on behalf of Lender, including,
without limitation, any sums deposited in the Lockbox Account (if any), the
Reserve Funds and Net Proceeds, as additional security for the Obligations
until expended or applied as provided in this Mortgage or in the Loan
Agreement.


 


CONDITIONS
TO GRANT


 


TO HAVE AND TO HOLD the
above granted and described Property unto Lender, and its successors and assigns, forever;


 


IN TRUST, WITH THE
POWER OF SALE, to secure payment to Lender of the Debt at the time and in the
manner provided for in the Note, the Loan Agreement, and this Mortgage;


 


PROVIDED, HOWEVER, these
presents are upon the express condition that, if Borrower shall well and truly
pay to Lender the Debt at the time and in the manner provided in the Note, the
Loan Agreement and this Mortgage, shall well and truly perform the Other
Obligations as set forth in this Mortgage and shall well and truly abide by and
comply with each and every covenant and condition set forth herein and in the
Note, the Loan Agreement and the other Loan Documents, these presents and the estate
hereby granted shall cease, terminate and be void and Lender shall promptly
thereafter mark the Note “paid in full” and will, at Borrower’s sole cost and
expense, release the lien of this Mortgage (and Lender agrees to make
reasonable efforts to do so within thirty days following the satisfaction of
the conditions herein set forth and Borrower’s written request thereafter to
provide such release); provided, however, that Borrower’s obligation to
indemnify and hold harmless Lender pursuant to the provisions hereof shall
survive any such payment or release.


 


ARTICLE 2


DEBT AND OBLIGATIONS SECURED


 


Section 2.1.            Debt.  This Mortgage and the grants, assignments and
transfers made in Article 1 are given for the purpose of securing the
following, in such order of priority as Lender may determine in its sole
discretion (the “Debt”):


 


(a)           the payment of the indebtedness
evidenced by the Note in lawful money of the United States of America;


 


7

















 


(b)           the
payment of interest, prepayment premiums, default interest, late charges and
other sums, as provided in the Note, the Loan Agreement, this Mortgage and the
other Loan Documents;


 


(c)           the
payment of all other moneys agreed or provided to be paid by Borrower in the
Note, the Loan Agreement, this Mortgage or the other Loan Documents;


 


(d)           the
payment of all sums advanced pursuant to this Mortgage to protect and preserve
the Property and the lien and the security interest created hereby; and


 


(e)           the
payment of all sums advanced and costs and expenses incurred by Lender in
connection with the Debt or any part thereof, any renewal, extension, or change
of or substitution for the Debt or any part thereof, or the acquisition or
perfection of the security therefor, whether made or incurred at the request of
Borrower or Lender.    


 


Section 2.2.            Other Obligations.  This Mortgage and the grants, assignments and
transfers made in Article 1 are also given for the purpose of securing the
following (the “Other Obligations”):


 


(a)           the performance of all other obligations of
Borrower contained herein;


 


(b)           the performance of each obligation of Borrower
contained in the Loan Agreement and any other Loan Document; and


 


(c)           the performance of each obligation of Borrower
contained in any renewal, extension, amendment, modification, consolidation,
change of, or substitution or replacement for, all or any part of the Note, the
Loan Agreement or any other Loan Document.


 


Section 2.3.            Debt and Other Obligations.  Borrower’s obligations for the payment of the
Debt and the performance of the Other Obligations shall be referred to
collectively herein as the “Obligations.”


 


ARTICLE 3


BORROWER COVENANTS


 


Borrower covenants and agrees that:


 


Section 3.1.            Payment of Debt.  Borrower will pay the Debt at the time and in
the manner provided in the Loan Agreement, the Note and this Mortgage.


 


Section 3.2.            Incorporation by Reference.  All the covenants, conditions and agreements
contained in (a) the Loan Agreement, (b) the
Note and (c) all and any of the other Loan Documents, are hereby made a
part of this Mortgage to the same extent and with the same force as if fully
set forth herein.


 


8

















 


Section 3.3.            Insurance.  Borrower shall obtain and maintain, or cause
to be maintained, in full force and effect at all times insurance with respect
to Borrower and the Property as required pursuant to the Loan Agreement.


 


Section 3.4.            Maintenance of Property.  Borrower shall cause the Property to be
maintained in a good and safe condition and repair.  The Improvements, the Fixtures, the Equipment
and the Personal Property shall not be removed, demolished or materially
altered except as provided for in the Loan Agreement (except for normal replacement
of the Fixtures, the Equipment or the Personal Property, tenant finish and
refurbishment of the Improvements) without the consent of Lender as provided
for in the Loan Agreement.  Borrower
shall promptly repair, replace or rebuild any part of the Property which may be
destroyed by any casualty, or become damaged, worn or dilapidated and shall
complete and pay for any structure at any time in the process of construction
or repair on the Land except as set forth in the Loan Agreement.


 


Section 3.5.            Waste.  Borrower shall not commit or suffer any waste
of the Property or make any change in the use of the Property which will in any
way materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow
the cancellation of any Policy, or do or permit to be done thereon anything
that may in any way materially impair the value of the Property or the security
of this Mortgage.  Borrower will not,
without the prior written consent of Lender, permit any drilling or exploration
for or extraction, removal, or production of any minerals from the surface or
the subsurface of the Land, regardless of the depth thereof or the method of
mining or extraction thereof.


 


Section 3.6.            Payment for Labor and Materials.


 


(a)           Subject to the terms, provisions and conditions of
the Loan Agreement, Borrower will promptly pay or cause
to be paid when due all bills and costs for labor, materials, and specifically
fabricated materials (“Labor and Material Costs”)
incurred in connection with the Property and never permit to exist beyond the
due date thereof in respect of the Property or any part thereof any lien or
security interest, even though inferior to the liens and the security interests
hereof, and in any event never permit to be created or exist in respect of the
Property or any part thereof any other or additional lien or security interest
other than the liens or security interests hereof except for the Permitted
Encumbrances.


 


(b)           Subject to the terms, provisions and conditions of
the Loan Agreement, after prior written notice to Lender, Borrower, or any
tenant of the Property pursuant to the terms of such tenant’s lease, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Labor and Material Costs,
provided that (i) no Event of Default has occurred and is continuing under
the Loan Agreement, the Note, this Mortgage or any of the other Loan Documents,
(ii) Borrower is permitted to do so under the provisions of any other
mortgage, deed of trust or deed to secure debt affecting the Property, (iii) such
proceeding shall suspend the collection of the Labor and Material Costs from
Borrower and from the Property or Borrower shall have paid all of the Labor and
Material Costs under protest, (iv) such


 


9

















 


proceeding shall be permitted
under and be conducted in accordance with the provisions of any other
instrument to which Borrower is subject and shall not constitute a default
thereunder, (v) neither the Property nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, canceled or
lost, and (vi) Borrower shall have furnished the security as may be
required in the proceeding, or as may be reasonably requested by Lender to
insure the payment of any contested Labor and Material Costs, together with all
interest and penalties thereon.


 


Section 3.7.            Performance of Other Agreements.  Borrower shall observe and perform each and
every term, covenant and provision to be observed or performed by Borrower
pursuant to the Loan Agreement, any other Loan Document and any other agreement
or recorded instrument affecting or pertaining to the Property and any
amendments, modifications or changes thereto.


 


Section 3.8.            Change of Name, Identity or Structure.   Except as set forth in the Loan Agreement,
Borrower shall not change Borrower’s name, identity (including its trade name
or names) or, if not an individual, Borrower’s corporate, partnership or other
structure without notifying Lender of such change in writing at least thirty
(30) days prior to the effective date of such change and, in the case of a
change in Borrower’s structure, without first obtaining the prior written
consent of Lender which consent will not be unreasonably withheld, delayed or
conditioned provided that such action is otherwise in compliance with the Loan
Agreement.  Borrower shall execute and
deliver to Lender, prior to or contemporaneously with the effective date of any
such change, any financing statement or financing statement change reasonably
required by Lender to establish or maintain the validity, perfection and
priority of the security interest granted herein.  At the request of Lender, Borrower shall
execute a certificate in form reasonably satisfactory to Lender listing the
trade names under which Borrower intends to operate the Property, and
representing and warranting that Borrower does business under no other trade
name with respect to the Property.


 


Section 3.9.            Title.  Borrower has good and indefeasible fee simple
title to the real property comprising part of the Property and good title to
the balance of such Property, free and clear of all Liens (as defined in the
Loan Agreement) whatsoever except the Permitted Encumbrances (as defined in the
Loan Agreement), such other Liens as are permitted pursuant to the Loan
Documents and the Liens created by the Loan Documents.  To Borrower’s actual knowledge, the Permitted
Encumbrances in the aggregate do not materially adversely affect the value,
operation or use of the Property of Borrower’s ability to repay the Loan.  This Mortgage, when properly recorded in the
appropriate records, together with any Uniform Commercial Code financing
statements required to be filed in connection therewith, will create (a) a
valid, perfected first priority lien, security title and security interest on
the Property, to the extent such security interests can be perfected by filing;
subject only to any applicable Permitted Encumbrances, such other Liens as are
permitted pursuant to the Loan Documents and the Liens created by the Loan
Documents.  There are no claims for
payment for work, labor or materials affecting the Property which are past due
and are or may become a lien prior to, or of equal


 


10

















 


priority with, the Liens created by the Loan
Documents unless such claims for payments are being contested in accordance
with the terms and conditions of this Mortgage.


 


Section 3.10.          Letter of Credit Rights.  If Borrower is at any time a beneficiary
under a letter of credit relating to the properties, rights, titles and
interests referenced in Section 1.1 of this Mortgage now or hereafter
issued in favor of Borrower, Borrower shall promptly notify Lender thereof and,
at the request and option of Lender, Borrower shall, pursuant to an agreement
in form and substance satisfactory to Lender, either (i) arrange for the
issuer and any confirmer of such letter of credit to consent to an assignment
to Lender of the proceeds of any drawing under the letter of credit or (ii) arrange
for the Lender to become the transferee beneficiary of the letter of credit,
with Lender agreeing, in each case that the proceeds of any drawing under the
letter of credit are to be applied as provided in Section 7.2 of this
Mortgage.


 


ARTICLE 4



OBLIGATIONS AND RELIANCES


 


Section 4.1.            Relationship of Borrower and Lender.  The relationship between Borrower and Lender
is solely that of debtor and creditor, and Lender has no fiduciary or other
special relationship with Borrower, and no term or condition of any of the Loan
Agreement, the Note, this Mortgage and the other Loan Documents shall be
construed so as to deem the relationship between Borrower and Lender to be
other than that of debtor and creditor.


 


Section 4.2.            No Reliance on Lender.  The general partners, members, principals and
(if Borrower is a trust) beneficial owners of Borrower are experienced in the
ownership and operation of properties similar to the Property, and Borrower and
Lender are relying solely upon such expertise and business plan in connection
with the ownership and operation of the Property.  Borrower is not relying on Lender’s
expertise, business acumen or advice in connection with the Property.


 


Section 4.3.            No Lender
Obligations.


 


(a)           Notwithstanding the provisions of Subsections 1.1(h) and
(n) or Section 1.2, Lender is not undertaking the performance of (i) any
obligations under the Leases; or (ii) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits,
trademarks, licenses and other documents.


 


(b)           By accepting or approving anything required to be
observed, performed or fulfilled or to be given to Lender pursuant to this
Mortgage, the Loan Agreement, the Note or the other Loan Documents, including,
without limitation, any officer’s certificate, balance sheet, statement of
profit and loss or other financial statement, survey, appraisal, or insurance
policy, Lender shall not be deemed to have warranted, consented to, or affirmed
the sufficiency, the legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or affirmation with respect
thereto by Lender.


 


11

















 


Section 4.4.            Reliance.  Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Mortgage and the other Loan
Documents, Lender is expressly and primarily relying on the truth and accuracy
of the warranties and representations set forth in Section 4.1 of the Loan
Agreement without any obligation to investigate the Property and
notwithstanding any investigation of the Property by Lender; that such reliance
existed on the part of Lender prior to the date hereof, that the warranties and
representations are a material inducement to Lender in making the Loan; and
that Lender would not be willing to make the Loan and accept this Mortgage in
the absence of the warranties and representations as set forth in Section 4.1
of the Loan Agreement.


 


ARTICLE 5



FURTHER ASSURANCES


 


Section 5.1.            Recording of Mortgage, Etc.  Borrower
forthwith upon the execution and delivery of this Mortgage and thereafter, from
time to time, will cause this Mortgage and any of the other Loan Documents
creating a lien or security interest or evidencing the lien hereof upon the
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 and perfect the
lien or security interest hereof upon, and the interest of Lender in, the
Property.  Borrower will pay all taxes,
filing, registration or recording fees, and all expenses incident to the
preparation, execution, acknowledgment and/or recording of the Note, this
Mortgage, the other Loan Documents, any note, deed of trust or mortgage
supplemental hereto, any security instrument with respect to the Property and
any instrument of further assurance, and any modification or amendment of the
foregoing documents, 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 deed of trust or mortgage
supplemental hereto, any security instrument with respect to the Property or
any instrument of further assurance, and any modification or amendment of the
foregoing documents, except where prohibited by law so to do.


 


Section 5.2.            Further Acts, Etc.  Borrower will, at the cost of Borrower, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, deeds of trust, mortgages, assignments,
notices of assignments, transfers and assurances as Lender shall, from time to
time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Lender the property and rights hereby
mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged,
assigned, warranted and transferred or intended now or hereafter so to be, or
which Borrower may be or may hereafter become bound to convey or assign to
Lender, or for carrying out the intention or facilitating the performance of
the terms of this Mortgage or for filing, registering or recording this
Mortgage, or for complying with all Legal Requirements.  Borrower, on demand, will execute and
deliver, and in the event it shall fail to so execute and deliver, hereby authorizes
Lender to execute in the name of Borrower or without the signature of Borrower
to the extent Lender may lawfully do so, one or more financing statements to
evidence more effectively the


 


12

















 


security interest of Lender in the
Property.  Borrower grants to Lender an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Lender
at law and in equity following an Event of Default, including without
limitation such rights and remedies available to Lender pursuant to this Section 5.2.  Nothing contained in this Section 5.2
shall be deemed to create an obligation on the part of Borrower to pay any
costs and expenses incurred by Lender in connection with the Securitization or
other sale or transfer of the Loan.


 


Section 5.3.            Changes
in Tax, Debt, Credit and Documentary Stamp Laws.


 


(a)           If any law is enacted or adopted or amended after the date of this
Mortgage which deducts the Debt from the value of the Property for the purpose
of taxation or which imposes a tax, either directly or indirectly, on the Debt
or Lender’s interest in the Property, Borrower will pay the tax, with interest
and penalties thereon, if any.  If Lender
is advised by counsel chosen by it that the payment of tax by Borrower would be
unlawful or taxable to Lender or unenforceable or provide the basis for a
defense of usury then Lender shall have the option by written notice of not
less than one hundred eighty (180) days to declare the Debt immediately due and
payable.


 


(b)           Borrower will not claim or demand or be entitled to any credit or credits
on account of the Debt for any part of the Taxes or Other Charges assessed
against the Property, or any part thereof, and no deduction shall otherwise be
made or claimed from the assessed value of the Property, or any part thereof,
for real estate tax purposes by reason of this Mortgage or the Debt.  If such claim, credit or deduction shall be
required by law, Lender shall have the option, by written notice of not less
than one hundred eighty (180) days, to declare the Debt immediately due and
payable.


 


(c)           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, this Mortgage, or any of the other Loan Documents or
impose any other tax or charge on the same, Borrower will pay for the same,
with interest and penalties thereon, if any.


 


Section 5.4.            Splitting of Mortgage.  The
provisions of Section 9.7 of the Loan Agreement are hereby incorporated by
reference herein.


 


Section 5.5.            Replacement Documents.  Upon
receipt of an affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of the Note or any other Loan Document which is not
of public record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note or other Loan Document, Borrower will issue, in lieu
thereof, a replacement Note or other Loan Document, dated the date of such
lost, stolen, destroyed or mutilated Note or other Loan Document in the same
principal amount thereof and otherwise of like tenor.


 


13

















 


ARTICLE 6



DUE ON SALE/ENCUMBRANCE


 


Section 6.1.            Lender Reliance.  Borrower
acknowledges that Lender has examined and relied on the experience of Borrower
and its general partners, members, principals and (if Borrower is a trust)
beneficial owners in owning and operating properties such as the Property in agreeing
to make the Loan, and will continue to rely on Borrower’s ownership of the
Property as a means of maintaining the value of the Property as security for
repayment of the Debt and the performance of the Other Obligations.  Borrower acknowledges that Lender has a valid
interest in maintaining the value of the Property so as to ensure that, should
Borrower default in the repayment of the Debt or the performance of the Other
Obligations, Lender can recover the Debt by a sale of the Property conducted in
accordance with the terms of the Loan Documents and applicable law.


 


Section 6.2.            No Sale/Encumbrance.  Except as set forth in Section 5.2.13 of
the Loan Agreement, Borrower agrees that Borrower shall not, without the prior
written consent of Lender, sell, convey, mortgage, grant, bargain, encumber,
pledge, assign, or otherwise transfer the Property or any part thereof,
including, but not limited to, a grant of an easement, restriction, covenant,
reservation or right of way (except as expressly permitted in Section 5.2.13
of the Loan Agreement), or permit the Property or any part thereof to be sold,
conveyed, mortgaged, granted, bargained, encumbered, pledged, assigned, or
otherwise transferred, unless Lender shall consent thereto in accordance with Section 6.4
hereof.


 


Section 6.3.            Sale/Encumbrance Defined.  Except as permitted pursuant to the terms of Section 5.2.13
of the Loan Agreement, a sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer within the meaning of this Article 6
shall be deemed to include, but not be limited to, (a) an installment
sales agreement wherein Borrower agrees to sell the Property or any part
thereof for a price to be paid in installments; (b) an agreement by
Borrower leasing all or a substantial part of the Property for other than
actual occupancy by a space tenant thereunder or a sale, assignment or other
transfer of, or the grant of a security interest in, Borrower’s right, title
and interest in and to any Leases or any Rents; (c) the voluntary or
involuntary sale, conveyance, transfer or pledge of the stock of the sole
member of Borrower (or the stock of
any corporation directly or indirectly controlling such sole member by
operation of law or otherwise) or the creation or issuance of new stock by
which an aggregate of more than ten percent (10%) of such sole member’s stock
shall be vested in a party or parties who are not now stockholders; (d) the
voluntary or involuntary sale, conveyance, transfer or pledge of any membership
interest in Borrower; (e) if Borrower, any sole member of Borrower, any
guarantor or any indemnitor is a limited liability company, the change, removal
or resignation of a member or managing member or the transfer or pledge of the
interest of any member or managing member or any profits or proceeds relating
to such interest; or (f) any other transfer prohibited by the terms of the
Loan Agreement.


 


14

















 


Section 6.4.            Lender’s Rights.  Except as
set forth in the Loan Agreement, Lender reserves the right to condition the
consent required hereunder upon (a) a modification of the terms hereof and
of the Loan Agreement, the Note or the other Loan Documents; (b) an
assumption of the Loan Agreement, the Note, this Mortgage and the other Loan
Documents as so modified by the proposed transferee, subject to the provisions
of Section 9.4 of the Loan Agreement; (c) payment of all of Lender’s
reasonable expenses incurred in connection with such transfer including,
without limitation, the cost of any third party reports, legal fees, rating
agency or required legal opinions; (d) the payment of an assumption fee
equal to one percent (1%) of the outstanding principal balance of the Loan; (e) the
confirmation in writing by the applicable Rating Agencies that the proposed
transfer will not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned in
connection with any Securitization; (f) intentionally deleted; (g) the
proposed transferee’s continued compliance with the representations and
covenants set forth in Section 4.1.30 and 5.2.12 of the Loan Agreement; (h) the
delivery of evidence satisfactory to Lender that the single purpose nature and
bankruptcy remoteness of Borrower following such transfers are in accordance
with the then current standards of Lender and the Rating Agencies, or (i) such
other conditions as Lender shall determine in its reasonable discretion to be
in the interest of Lender, including, without limitation, the creditworthiness,
reputation and qualifications of the transferee with respect to the Loan and
the Property.  Lender shall not be
required to demonstrate any actual impairment of its security or any increased
risk of default hereunder in order to declare the Debt immediately due and
payable upon Borrower’s sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property without Lender’s
consent (to the extent such consent is required hereunder or under the Loan
Agreement).  This provision shall apply
to every sale, conveyance, mortgage, grant, bargain, encumbrance, pledge,
assignment, or transfer of the Property regardless of whether voluntary or not,
or whether or not Lender has consented to any previous sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Property.


 


ARTICLE 7



RIGHTS AND REMEDIES UPON DEFAULT


 


Section 7.1.            Remedies.  Upon the
occurrence and during the continuance of any Event of Default, Borrower agrees
that Lender may take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against
Borrower and in and to the Property, including, but not limited to, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Lender may determine, in
its sole discretion, without impairing or otherwise affecting the other rights
and remedies of Lender:


 


(a)           declare the entire unpaid Debt to be immediately due and payable;


 


(b)           institute proceedings, judicial or otherwise, for the complete foreclosure
of this Mortgage under any applicable provision of law, in which case the
Property or any interest


 


15

















 


therein may be sold for cash or
upon credit in one or more parcels or in several interests or portions and in
any order or manner;


 


(c)           with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Mortgage for the portion of the Debt then due and payable,
subject to the continuing lien and security interest of this Mortgage for the
balance of the Debt not then due, unimpaired and without loss of priority;


 


(d)           sell for cash or upon credit the Property or any part thereof and all
estate, claim, demand, right, title and interest of Borrower therein and rights
of redemption thereof, pursuant to power of sale or otherwise, at one or more
sales, as an entity or in parcels, at such time and place, upon such terms and
after such notice thereof as may be required or permitted by law;


 


(e)           institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein, in the
Note, the Loan Agreement or in the other Loan Documents;


 


(f)            recover judgment on the Note either before, during
or after any proceedings for the enforcement of this Mortgage or the other Loan
Documents;


 


(g)           apply for the appointment of a receiver, trustee, liquidator or conservator
of the Property, without notice and without regard for the adequacy of the
security for the Debt and without regard for the solvency of Borrower, any
guarantor, indemnitor with respect to the Loan or of any Person, liable for the
payment of the Debt;


 


(h)           the license granted to Borrower under Section 1.2 hereof shall
automatically be revoked and Lender may, to the extent permitted pursuant to
procedures provided by applicable law, enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damages or
otherwise and exclude Borrower and its agents or servants wholly therefrom, and
take possession of all books, records and accounts relating thereto and
Borrower agrees to surrender possession of the Property and of such books,
records and accounts to Lender upon demand, and thereupon Lender may (i) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, sue for, collect and
receive all Rents of the Property and every part thereof; (v) require
Borrower to pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of such part of the Property as may be occupied by Borrower; (vi) require
Borrower to vacate and surrender possession of the Property


 


16

















 


to Lender or to such receiver
and, in default thereof, Borrower may be evicted by summary proceedings or
otherwise; and (vii) apply the receipts from the Property to the payment
of the Debt, in such order, priority and proportions as Lender shall deem
appropriate in its sole discretion after deducting therefrom all expenses (including
reasonable attorneys’ fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the Taxes, Other Charges, insurance
and other expenses in connection with the Property, as well as just and
reasonable compensation for the services of Lender, its counsel, agents and
employees;


 


(i)            exercise 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: (i) the right to take
possession of the Fixtures, the Equipment, the Personal Property or any part
thereof, and to take such other measures as Lender may deem necessary for the
care, protection and preservation of the Fixtures, the Equipment, the Personal
Property, and (ii) request Borrower at its expense to assemble the
Fixtures, the Equipment, the Personal Property and make it available to Lender
at a convenient place acceptable to Lender. 
Any notice of sale, disposition or other intended action by Lender with
respect to the Fixtures, the Equipment, the Personal Property sent to Borrower
in accordance with the provisions hereof at least five (5) days prior to
such action, shall constitute commercially reasonable notice to Borrower;


 


(j)            apply any sums then deposited or held in escrow or
otherwise by or on behalf of Lender in accordance with the terms of the Loan
Agreement, this Mortgage or any other Loan Document to the payment of the
following items in any order in its uncontrolled discretion:


 


(i)            Taxes and Other Charges;


 


(ii)           Insurance Premiums;


 


(iii)          Interest on the unpaid principal balance of the Note;


 


(iv)          Amortization of the unpaid principal balance of the Note;


 


(v)           All other sums payable pursuant to the Note, the Loan Agreement, this
Mortgage and the other Loan Documents, including without limitation advances
made by Lender pursuant to the terms of this Mortgage;


 


(k)           pursue such other remedies as Lender may have under applicable law; 


 


(l)            apply the undisbursed balance of any Net Proceeds
Deficiency deposit, together with interest thereon, to the payment of the Debt
in such order, priority and proportions as Lender shall deem to be appropriate
in its discretion; or


 


(m)          under
the power of sale granted hereunder
or under applicable law, Lender shall have the discretionary right to cause
some or all of the Property, including any Personal


 


17

















 


Property, to be sold or otherwise disposed of in any combination and in
any manner permitted by applicable law.


 


In the event of a sale, by foreclosure, power of sale or otherwise, of
less than all of Property, this Mortgage shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss
of priority.


 


Section 7.2.            Application of Proceeds.  The purchase money, proceeds and avails of
any disposition of the Property, and or any part thereof, or any other sums
collected by Lender pursuant to the Note, this Mortgage or the other Loan
Documents, may be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper.


 


Section 7.3.            Right to Cure Defaults.  Upon the occurrence and during the
continuance of any Event of Default or if Borrower fails to make any payment or
to do any act as herein provided, Lender may, but without any obligation to do
so and without notice to or demand on Borrower and without releasing Borrower
from any obligation hereunder, make or do the same in such manner and to such
extent as Lender may deem necessary to protect the security hereof.  Lender is authorized to enter upon action or
proceeding to the Property for such purposes, or appear in, defend, or bring
any action or proceeding to protect its interest in the Property or to
foreclose this Mortgage or collect the Debt, and the cost and expense thereof
(including reasonable attorneys’ fees to the extent permitted by law), with
interest as provided in this Section 7.3, shall constitute a portion of
the Debt and shall be due and payable to Lender upon demand.  All such costs and expenses incurred by
Lender in remedying such Event of Default or such failed payment or act or in
appearing in, defending, or bringing any such action or proceeding shall bear
interest at the Default Rate, for the period after notice from Lender that such
cost or expense was incurred to the date of payment to Lender.  All such costs and expenses incurred by
Lender together with interest thereon calculated at the Default Rate shall be
deemed to constitute a portion of the Debt and be secured by this Mortgage and
the other Loan Documents and shall be immediately due and payable upon demand
by Lender therefor.


 


Section 7.4.            Actions and Proceedings.  Lender has the right to appear in and defend
any action or proceeding brought with respect to the Property and to bring any
action or proceeding, in the name and on behalf of Borrower, which Lender, in
its discretion, decides should be brought to protect its interest in the
Property.


 


Section 7.5.            Recovery of Sums Required To be Paid.  Lender 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 Lender thereafter to
bring an action of foreclosure, or any other action, for a default or defaults
by Borrower existing at the time such earlier action was commenced.


 


Section 7.6.            Examination of Books and Records.  At reasonable times and upon reasonable
notice, Lender, its agents, accountants and attorneys shall have the right to
examine


 


18

















 


the records, books, management and other
papers of Borrower which reflect upon their financial condition, at the Property
or at any office regularly maintained by Borrower where the books and records
are located.  Lender and its agents shall
have the right to make copies and extracts from the foregoing records and other
papers.  In addition, at reasonable times
and upon reasonable notice, Lender, its agents, accountants and attorneys shall
have the right to examine and audit the books and records of Borrower
pertaining to the income, expenses and operation of the Property during
reasonable business hours at any office of Borrower where the books and records
are located.  This Section 7.6 shall
apply throughout the term of the Note and without regard to whether an Event of
Default has occurred or is continuing. The action
contemplated by this Section 7.6 shall be at Lender’s sole cost and expense,
unless an Event of Default shall be continuing, in which event such action
shall be at Borrower’s sole cost and expense.


 


Section 7.7.            Other Rights, Etc.


 


(a)           The failure of Lender to insist upon strict performance of any term hereof
shall not be deemed to be a waiver of any term of this Mortgage.  Borrower shall not be relieved of Borrower’s
obligations hereunder by reason of (i) the failure of Lender to comply
with any request of Borrower or any guarantor or indemnitor with respect to the
Loan to take any action to foreclose this Mortgage or otherwise enforce any of
the provisions hereof or of the Note or the other Loan Documents, (ii) the
release, regardless of consideration, of the whole or any part of the Property,
or of any person liable for the Debt or any portion thereof, or (iii) any
agreement or stipulation by Lender extending the time of payment or otherwise
modifying or supplementing the terms of the Note, this Mortgage or the other
Loan Documents.


 


(b)           It is agreed that the risk of loss or damage to the Property is on
Borrower, and Lender shall have no liability whatsoever for decline in value of
the Property, for failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of risks insured.  Possession by Lender shall not be deemed an
election of judicial relief, if any such possession is requested or obtained,
with respect to any Property or collateral not in Lender’s possession.


 


(c)           Lender may resort for the payment of the Debt to
any other security held by Lender in such order and
manner as Lender, in its discretion, may elect.  Lender may take action
to recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Lender thereafter to
foreclose this Mortgage.  The rights of
Lender under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the
others.  No act of Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision.  Lender 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.


 


Section 7.8.            Right to Release Any Portion of the Property.  Lender may release any portion of the
Property for such consideration as Lender may require without, as to the
remainder of the Property, in any way impairing or affecting the lien or
priority of this Mortgage, or improving the position of any subordinate
lienholder with respect thereto, except to the extent


 


19

















 


that the obligations hereunder shall have
been reduced by the actual monetary consideration, if any, received by Lender
for such release, and may accept by assignment, pledge or otherwise any other
property in place thereof as Lender may require without being accountable for
so doing to any other lienholder.  This
Mortgage shall continue as a lien and security interest in the remaining
portion of the Property.


 


Section 7.9.            Violation of Laws.  If the Property is not in material compliance
with Legal Requirements, Lender may impose additional requirements upon
Borrower in connection herewith including, without limitation, monetary
reserves or financial equivalents.


 


Section 7.10.          Recourse and Choice of Remedies.  Notwithstanding any other provision of this
Mortgage or the Loan Agreement, including, without limitation, Section 9.4
of the Loan Agreement, Lender and other Indemnified Parties (as hereinafter
defined) are entitled to enforce the obligations of Borrower, any guarantor or
indemnitor contained in Sections 9.2, 9.3 and 9.4 herein and Section 9.4
of the Loan Agreement without first resorting to or exhausting any security or
collateral and without first having recourse to the Note or any of the
Property, through foreclosure or acceptance of a deed in lieu of foreclosure or
otherwise, and in the event Lender commences a foreclosure action against the
Property, Lender is entitled to pursue a deficiency judgment with respect to
such obligations against Borrower and any guarantor or indemnitor with respect
to the Loan.  The provisions of Sections
9.2, 9.3 and 9.4 herein and Section 9.4 of the Loan Agreement are
exceptions to any non-recourse or exculpation provisions in the Loan Agreement,
the Note, this Mortgage or the other Loan Documents, and Borrower and any
guarantor or indemnitor with respect to the Loan are fully and personally
liable for the obligations pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.4
of the Loan Agreement.  The liability of
Borrower and any guarantor or indemnitor with respect to the Loan pursuant to
Sections 9.2, 9.3 and 9.4 herein and Section 9.4 of the Loan Agreement is
not limited to the original principal amount of the Note.  Notwithstanding the foregoing, nothing herein
shall inhibit or prevent Lender from foreclosing or exercising any other rights
and remedies pursuant to the Loan Agreement, the Note, this Mortgage and the
other Loan Documents, whether simultaneously with foreclosure proceedings or in
any other sequence.  A separate action or
actions may be brought and prosecuted against Borrower pursuant to Sections
9.2, 9.3 and 9.4 herein and Section 9.4 of the Loan Agreement, whether or
not action is brought against any other Person or whether or not any other
Person is joined in the action or actions. 
In addition, Lender shall have the right but not the obligation to join
and participate in, as a party if it so elects, any administrative or judicial
proceedings or actions initiated in connection with any matter addressed in Article 8
or Section 9.4 herein.


 


Section 7.11.          Right of Entry.  Upon
reasonable notice to Borrower, Lender and its agents shall have the right to
enter and inspect the Property at all reasonable times.


 


Section 7.12.          Release.  Upon
payment of all sums secured by this Mortgage, the Lender shall release this
Mortgage.  The Borrower shall pay the
Lender’s reasonable costs incurred in releasing this Mortgage.


 


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ARTICLE 8



ENVIRONMENTAL HAZARDS


 


Section 8.1.            Environmental Representations and Warranties.  To the best of Borrower’s knowledge, and
except as otherwise disclosed by that certain Environmental Site Assessment of
the Property delivered to Lender (such report is referred to below as the “Environmental Report”), Borrower
hereby represents and warrants (a) to the best of Borrower’s knowledge,
based on the Environmental Report, there are no Hazardous Substances (defined
below) or underground storage tanks in, on, or under the Property, except those
that are both (i) in compliance with Environmental Laws (defined below)
and with permits issued pursuant thereto and (ii) fully disclosed to Lender
in writing pursuant the Environmental Report; (b) there are no past,
present or threatened Releases (defined below) of Hazardous Substances in, on,
under or from the Property which has not been fully remediated in accordance
with Environmental Law; (c) there is no threat of any Release of Hazardous
Substances migrating to the Property; (d) there is no past or present
non-compliance with Environmental Laws, or with permits issued pursuant
thereto, in connection with the Property which has not been fully remediated in
accordance with Environmental Law; (e) Borrower does not know of, and has
not received, any written or oral notice or other communication from any Person
(including but not limited to a governmental entity) relating to Hazardous
Substances or Remediation (defined below) thereof, of possible liability of any
Person pursuant to any Environmental Law, other environmental conditions in
connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with any of the foregoing; and (f) Borrower
has truthfully and fully provided to Lender, in writing, any and all
information relating to conditions in, on, under or from the Property that is
known to Borrower and that is contained in Borrower’s files and records,
including but not limited to any reports relating to Hazardous Substances in,
on, under or from the Property and/or to the environmental condition of the
Property.  “Environmental Law” means any
present and future federal, applicable state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law, relating to
protection of human health or the environment, relating to Hazardous
Substances, relating to liability for or costs of Remediation or prevention of
Releases of Hazardous Substances or relating to liability for or costs of other
actual or threatened danger to human health or the environment.  Environmental Law includes, but is not
limited to, the following statutes, as amended, any successor thereto, and any
regulations promulgated pursuant thereto, and any applicable state or local
statutes, ordinances, rules, regulations and the like addressing similar
issues:  the Comprehensive Environmental
Response, Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to underground storage tanks); the Solid Waste Disposal Act; the Clean Water
Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking
Water Act; the Occupational Safety and Health Act; the Federal Water Pollution
Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the
Endangered Species Act; the National Environmental Policy Act; and the River
and Harbors Appropriation Act. 
Environmental Law also includes, but is not limited to, any present and
future federal, applicable state and local laws,


 


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statutes, ordinances, rules, regulations and the like, as well as
common law:  conditioning transfer of
property upon a negative declaration or other approval of a governmental
authority of the environmental condition of the Property; requiring
notification or disclosure of Releases of Hazardous Substances or other
environmental condition of the Property to any governmental authority or other
Person, whether or not in connection with transfer of title to or interest in
property; imposing conditions or requirements in connection with permits or
other authorization for lawful activity; relating to nuisance, trespass or
other causes of action related to the Property; and relating to wrongful death,
personal injury, or property or other damage in connection with any physical condition
or use of the Property.


 


“Hazardous Substances” include but
are not limited to any and all substances (whether solid, liquid or gas)
defined, listed, or otherwise classified as pollutants, hazardous wastes,
hazardous substances, hazardous materials, extremely hazardous wastes, or words
of similar meaning or regulatory effect under any present or future
Environmental Laws or that may have a negative impact on human health or the
environment, including but not limited to petroleum and petroleum products,
asbestos and asbestos-containing materials, polychlorinated biphenyls, lead,
radon, radioactive materials, flammables and explosives, but excluding
substances of kinds and in amounts ordinarily and customarily used or stored in
similar properties for the purpose of cleaning or other maintenance or
operations and otherwise in compliance with all Environmental Laws.


 


“Release”
of any Hazardous Substance includes but is not limited to any release, deposit,
discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping,
pouring, emptying, escaping, dumping, disposing or other movement of Hazardous
Substances.


 


“Remediation” includes but is
not limited to any response, remedial, removal, or corrective action, any
activity to cleanup, detoxify, decontaminate, contain or otherwise remediate
any Hazardous Substance, any actions to prevent, cure or mitigate any Release
of any Hazardous Substance, any action to comply with any Environmental Laws or
with any permits issued pursuant thereto, any inspection, investigation, study,
monitoring, assessment, audit, sampling and testing, laboratory or other
analysis, or evaluation relating to any Hazardous Substances or to anything
referred to in Article 8.


 


Section 8.2.            Environmental Covenants.  Borrower covenants and agrees that: (a) all
uses and operations on or of the Property, whether by Borrower or any other
Person, shall be in compliance with all Environmental Laws and permits issued
pursuant thereto; (b) Borrower shall not cause or permit the Release of
any Hazardous Substances in, on, under or from the Property; (c) there
shall be no Hazardous Substances in, on, or under the Property, except those
that are both (i) in compliance with all Environmental Laws and with
permits issued pursuant thereto and (ii) fully disclosed to Lender in
writing; (d) Borrower shall keep the Property free and clear of all liens
and other encumbrances imposed pursuant to any Environmental Law, whether due
to any act or omission of Borrower or any other Person (the “Environmental Liens”); (e) Borrower
shall, at its sole cost and expense, fully and expeditiously cooperate in all
activities pursuant to Section 8.3 below, including but not limited to
providing all relevant


 


22

















 


information and making knowledgeable persons
available for interviews; (f) Borrower shall, at its sole cost and
expense, perform any environmental site assessment or other investigation of
environmental conditions in connection with the Property, pursuant to any
reasonable written request of Lender made in the event that Lender has a good
faith reason to believe based upon credible evidence or information that an
environmental hazard exists on or affects the Property (including but not
limited to sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas), and
share with Lender the reports and other results thereof, and Lender and other
Indemnified Parties shall be entitled to rely on such reports and other results
thereof; (g) Borrower shall, at its sole cost and expense, comply with all
reasonable written requests of Lender made in the event that Lender has a good
faith reason to believe based upon credible evidence or information that an
environmental hazard exists on or affects the Property to (i) reasonably
effectuate Remediation of any condition (including but not limited to a Release
of a Hazardous Substance) in, on, under or from the Property; (ii) comply
with any Environmental Law; (iii) comply with any directive from any
governmental authority; and (iv) take any other reasonable action
necessary or appropriate for protection of human health or the environment; (h) Borrower
shall not do or knowingly allow any tenant or other user of the Property to do
any act that materially increases the dangers to human health or the
environment, poses an unreasonable risk of harm to any Person (whether on or
off the Property), impairs or may impair the value of the Property, is contrary
to any requirement of any insurer, constitutes a public or private nuisance,
constitutes waste, or violates any covenant, condition, agreement or easement
applicable to the Property; and (i) Borrower shall immediately notify
Lender in writing of (A) any presence or Releases or threatened Releases
of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any
non-compliance with any Environmental Laws related in any way to the Property; (C) any
actual or potential Environmental Lien; (D) any required or proposed
Remediation of environmental conditions relating to the Property; and (E) any
written or oral notice or other communication of which Borrower becomes aware
from any source whatsoever (including but not limited to a governmental entity)
relating in any way to Hazardous Substances or Remediation thereof, possible
liability of any Person pursuant to any Environmental Law, other environmental
conditions in connection with the Property, or any actual or potential
administrative or judicial proceedings in connection with anything referred to
in this Article 8.


 


Section 8.3.            Lender’s Rights.  In the
event that Lender has a good faith reason to believe based upon credible
evidence or information that an environmental hazard exists on the Property,
upon reasonable notice from Lender, Borrower shall, at Borrower’s expense,
promptly cause an engineer or consultant satisfactory to Lender to conduct any
environmental assessment or audit (the scope of which shall be determined in
Lender’s sole and absolute discretion) and take any samples of soil,
groundwater or other water, air, or building materials or any other invasive
testing requested by Lender and promptly deliver the results of any such
assessment, audit, sampling or other testing; provided, however, if such
results are not delivered to Lender within a reasonable period, upon reasonable
notice to Borrower, Lender and any other Person designated by Lender, including
but not limited to any receiver, any representative of a governmental entity,
and any environmental consultant, shall have the right, but not the obligation,
to enter upon the Property at all reasonable times to assess any and all
aspects of the


 


23

















 


environmental condition of the Property and
its use, including but not limited to conducting any environmental assessment
or audit (the scope of which shall be determined in Lender’s sole and absolute
discretion) and taking samples of soil, groundwater or other water, air, or
building materials, and reasonably conducting other invasive testing.  Borrower shall cooperate with and provide
access to Lender and any such Person designated by Lender.


 


ARTICLE 9



INDEMNIFICATIONS


 


Section 9.1.            GENERAL INDEMNIFICATION. 
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST
ANY AND ALL CLAIMS, SUITS, LIABILITIES (INCLUDING, WITHOUT LIMITATION, STRICT
LIABILITIES), ACTIONS, PROCEEDINGS, OBLIGATIONS, DEBTS, DAMAGES, LOSSES, COSTS,
EXPENSES, DIMINUTIONS IN VALUE, FINES, PENALTIES, CHARGES, FEES, EXPENSES,
JUDGMENTS, AWARDS, AMOUNTS PAID IN SETTLEMENT, PUNITIVE DAMAGES, FORESEEABLE
AND UNFORESEEABLE CONSEQUENTIAL DAMAGES, OF WHATEVER KIND OR NATURE (INCLUDING
BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES AND OTHER COSTS OF DEFENSE)
(COLLECTIVELY, THE “LOSSES”) IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST
ANY INDEMNIFIED PARTIES AND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY
RELATING TO ANY ONE OR MORE OF THE FOLLOWING: (A) OWNERSHIP OF THIS
MORTGAGE, THE PROPERTY OR ANY INTEREST THEREIN OR RECEIPT OF ANY RENTS; (B) ANY
AMENDMENT TO, OR RESTRUCTURING OF, THE DEBT, AND THE NOTE, THE LOAN AGREEMENT,
THIS MORTGAGE, OR ANY OTHER LOAN DOCUMENTS; (C) ANY AND ALL LAWFUL ACTION
THAT MAY BE TAKEN BY LENDER IN CONNECTION WITH THE ENFORCEMENT OF THE
PROVISIONS OF THIS MORTGAGE OR THE LOAN AGREEMENT OR THE NOTE OR ANY OF THE
OTHER LOAN DOCUMENTS, WHETHER OR NOT SUIT IS FILED IN CONNECTION WITH SAME, OR
IN CONNECTION WITH BORROWER, ANY GUARANTOR OR INDEMNITOR AND/OR ANY PARTNER,
JOINT VENTURER OR SHAREHOLDER THEREOF BECOMING A PARTY TO A VOLUNTARY OR
INVOLUNTARY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDING; (D) ANY
ACCIDENT, INJURY TO OR DEATH OF PERSONS OR LOSS OF OR DAMAGE TO PROPERTY
OCCURRING IN, ON OR ABOUT THE PROPERTY OR ANY PART THEREOF OR ON THE
ADJOINING SIDEWALKS, CURBS, ADJACENT PROPERTY OR ADJACENT PARKING AREAS,
STREETS OR WAYS; (E) PERFORMANCE OF ANY LABOR OR SERVICES OR THE
FURNISHING OF ANY MATERIALS OR OTHER PROPERTY IN RESPECT OF THE PROPERTY OR ANY
PART THEREOF; (F) THE FAILURE OF ANY PERSON TO FILE TIMELY WITH THE
INTERNAL REVENUE SERVICE AN ACCURATE FORM 1099-B, STATEMENT FOR RECIPIENTS
OF PROCEEDS FROM REAL ESTATE, BROKER


 


24

















 


AND BARTER EXCHANGE TRANSACTIONS, WHICH MAY BE
REQUIRED IN CONNECTION WITH THIS MORTGAGE, OR TO SUPPLY A COPY THEREOF IN A
TIMELY FASHION TO THE RECIPIENT OF THE PROCEEDS OF THE TRANSACTION IN
CONNECTION WITH WHICH THIS MORTGAGE IS MADE; (G) ANY FAILURE OF THE
PROPERTY TO BE IN COMPLIANCE WITH ANY LEGAL REQUIREMENTS; (H) THE
ENFORCEMENT BY ANY INDEMNIFIED PARTY OF THE PROVISIONS OF THIS ARTICLE 9;
(I) ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH MAY BE ASSERTED
AGAINST LENDER 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 LEASE; (J) THE PAYMENT OF ANY COMMISSION, CHARGE OR BROKERAGE FEE TO
ANYONE CLAIMING THROUGH BORROWER WHICH MAY BE PAYABLE IN CONNECTION WITH
THE FUNDING OF THE LOAN; OR (K) ANY MISREPRESENTATION MADE BY BORROWER IN THIS
MORTGAGE OR ANY OTHER LOAN DOCUMENT. 
NOTWITHSTANDING THE FOREGOING, BORROWER SHALL NOT BE LIABLE TO THE INDEMNIFIED
PARTIES UNDER THIS SECTION 9.1 FOR ANY LOSSES TO WHICH THE INDEMNIFIED
PARTIES MAY BECOME SUBJECT TO THE EXTENT SUCH LOSSES ARISE BY REASON OF
THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTIES OR LOSSES RESULTING FROM ACTS OR OMISSIONS ARISING AFTER A
COMPLETED FORECLOSURE OF THE PROPERTY OR ACCEPTANCE BY LENDER OF A DEED IN LIEU
OF FORECLOSURE.  ANY AMOUNTS PAYABLE TO
LENDER BY REASON OF THE APPLICATION OF THIS SECTION 9.1 SHALL BECOME
IMMEDIATELY DUE AND PAYABLE AND SHALL BEAR INTEREST AT THE DEFAULT RATE FROM
THE DATE LOSS OR DAMAGE IS SUSTAINED BY LENDER UNTIL PAID.  FOR PURPOSES OF THIS ARTICLE 9, THE TERM
“INDEMNIFIED PARTIES” MEANS LENDER AND ANY PERSON WHO IS OR WILL HAVE BEEN
INVOLVED IN THE ORIGINATION OF THE LOAN, ANY PERSON WHO IS OR WILL HAVE BEEN
INVOLVED IN THE SERVICING OF THE LOAN SECURED HEREBY, ANY PERSON IN WHOSE NAME
THE ENCUMBRANCE CREATED BY THIS MORTGAGE IS OR WILL HAVE BEEN RECORDED, PERSONS
AND ENTITIES WHO MAY HOLD OR ACQUIRE OR WILL HAVE HELD A FULL OR PARTIAL
INTEREST IN THE LOAN SECURED HEREBY (INCLUDING, BUT NOT LIMITED TO, INVESTORS
OR PROSPECTIVE INVESTORS IN THE SECURITIES, AS WELL AS CUSTODIANS, TRUSTEES AND
OTHER FIDUCIARIES WHO HOLD OR HAVE HELD A FULL OR PARTIAL INTEREST IN THE LOAN
SECURED HEREBY FOR THE BENEFIT OF THIRD PARTIES) AS WELL AS THE RESPECTIVE
DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, EMPLOYEES, AGENTS, SERVANTS,
REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, AFFILIATES, SUBSIDIARIES,
PARTICIPANTS, SUCCESSORS AND ASSIGNS OF ANY AND ALL OF THE FOREGOING (INCLUDING
BUT NOT LIMITED TO ANY OTHER PERSON WHO HOLDS OR ACQUIRES OR WILL HAVE HELD A
PARTICIPATION OR OTHER FULL OR PARTIAL INTEREST IN THE


 


25

















 


LOAN, WHETHER DURING THE TERM OF THE LOAN OR
AS A PART OF OR FOLLOWING A FORECLOSURE OF THE LOAN AND INCLUDING, BUT NOT
LIMITED TO, ANY SUCCESSORS BY MERGER, CONSOLIDATION OR ACQUISITION OF ALL OR A
SUBSTANTIAL PORTION OF LENDER’S ASSETS AND BUSINESS).


 


Section 9.2.            MORTGAGE AND/OR INTANGIBLE TAX.  BORROWER
SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND, INDEMNIFY, RELEASE AND
HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES
IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTIES AND
DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO ANY TAX ON THE
MAKING AND/OR RECORDING OF THIS MORTGAGE, THE NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS, BUT EXCLUDING ANY INCOME, FRANCHISE OR OTHER SIMILAR TAXES.  BORROWER HEREBY AGREES THAT, IN THE EVENT
THAT IT IS DETERMINED THAT ANY DOCUMENTARY STAMP TAXES OR INTANGIBLE PERSONAL
PROPERTY TAXES ARE DUE HEREON OR ON ANY MORTGAGE OR PROMISSORY NOTE EXECUTED IN
CONNECTION HEREWITH (INCLUDING, WITHOUT LIMITATION, THE NOTE), BORROWER SHALL
INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FOR ALL SUCH DOCUMENTARY
STAMP AND/OR INTANGIBLE TAXES, INCLUDING ALL PENALTIES AND INTEREST ASSESSED OR
CHARGED IN CONNECTION THEREWITH.


 


Section 9.3.            ERISA INDEMNIFICATION. 
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST
ANY AND ALL LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES
AND COSTS INCURRED IN THE INVESTIGATION, DEFENSE, AND SETTLEMENT OF LOSSES
INCURRED IN CORRECTING ANY PROHIBITED TRANSACTION OR IN THE SALE OF A
PROHIBITED LOAN, AND IN OBTAINING ANY INDIVIDUAL PROHIBITED TRANSACTION
EXEMPTION UNDER ERISA THAT MAY BE REQUIRED, IN LENDER’S SOLE DISCRETION)
THAT LENDER MAY INCUR, DIRECTLY OR INDIRECTLY, AS A RESULT OF A DEFAULT
UNDER SECTIONS 4.1.9 OR 5.2.12 OF THE LOAN AGREEMENT.


 


Section 9.4.            ENVIRONMENTAL INDEMNIFICATION. 
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST
ANY AND ALL LOSSES AND COSTS OF REMEDIATION (WHETHER OR NOT PERFORMED
VOLUNTARILY), ENGINEERS’ FEES, ENVIRONMENTAL CONSULTANTS’ FEES, AND COSTS OF
INVESTIGATION (INCLUDING BUT NOT LIMITED TO SAMPLING, TESTING, AND ANALYSIS OF
SOIL, WATER, AIR, BUILDING MATERIALS AND OTHER MATERIALS AND SUBSTANCES WHETHER


 


26

















 


SOLID, LIQUID OR GAS) IMPOSED UPON OR
INCURRED BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTIES, AND DIRECTLY OR
INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO ANY ONE OR MORE OF THE
FOLLOWING: (A) ANY PRESENCE OF ANY HAZARDOUS SUBSTANCES IN, ON, ABOVE, OR
UNDER THE PROPERTY; (B) ANY PAST, PRESENT OR THREATENED RELEASE OF
HAZARDOUS SUBSTANCES IN, ON, ABOVE, UNDER OR FROM THE PROPERTY; (C) ANY
ACTIVITY BY BORROWER, ANY PERSON AFFILIATED WITH BORROWER OR ANY TENANT OR
OTHER USER OF THE PROPERTY IN CONNECTION WITH ANY ACTUAL, PROPOSED OR
THREATENED USE, TREATMENT, STORAGE, HOLDING, EXISTENCE, DISPOSITION OR OTHER
RELEASE, GENERATION, PRODUCTION, MANUFACTURING, PROCESSING, REFINING, CONTROL,
MANAGEMENT, ABATEMENT, REMOVAL, HANDLING, TRANSFER OR TRANSPORTATION TO OR FROM
THE PROPERTY OF ANY HAZARDOUS SUBSTANCES AT ANY TIME LOCATED IN, UNDER, ON OR
ABOVE THE PROPERTY; (D) ANY ACTIVITY BY BORROWER, ANY PERSON AFFILIATED
WITH BORROWER OR ANY TENANT OR OTHER USER OF THE PROPERTY IN CONNECTION WITH
ANY ACTUAL OR PROPOSED REMEDIATION OF ANY HAZARDOUS SUBSTANCES AT ANY TIME
LOCATED IN, UNDER, ON OR ABOVE THE PROPERTY, WHETHER OR NOT SUCH REMEDIATION IS
VOLUNTARY OR PURSUANT TO COURT OR ADMINISTRATIVE ORDER, INCLUDING BUT NOT
LIMITED TO ANY REMOVAL, REMEDIAL OR CORRECTIVE ACTION; (E) ANY PAST OR
PRESENT NON-COMPLIANCE OR VIOLATIONS OF ANY ENVIRONMENTAL LAWS (OR PERMITS
ISSUED PURSUANT TO ANY ENVIRONMENTAL LAW) IN CONNECTION WITH THE PROPERTY OR
OPERATIONS THEREON, INCLUDING BUT NOT LIMITED TO ANY FAILURE BY BORROWER, ANY
AFFILIATE OF BORROWER OR ANY TENANT OR OTHER USER OF THE PROPERTY TO COMPLY
WITH ANY ORDER OF ANY GOVERNMENTAL AUTHORITY IN CONNECTION WITH ANY ENVIRONMENTAL
LAWS; (F) THE IMPOSITION, RECORDING OR FILING OF ANY ENVIRONMENTAL LIEN
ENCUMBERING THE PROPERTY; (G) ANY ADMINISTRATIVE PROCESSES OR PROCEEDINGS
OR JUDICIAL PROCEEDINGS IN ANY WAY CONNECTED WITH ANY MATTER ADDRESSED IN ARTICLE 8
AND THIS SECTION 9.4; (H) ANY PAST, PRESENT OR THREATENED INJURY TO,
DESTRUCTION OF OR LOSS OF NATURAL RESOURCES IN ANY WAY CONNECTED WITH THE
PROPERTY, INCLUDING BUT NOT LIMITED TO COSTS TO INVESTIGATE AND ASSESS SUCH
INJURY, DESTRUCTION OR LOSS; (I) ANY ACTS OF BORROWER OR OTHER USERS OF THE
PROPERTY IN ARRANGING FOR DISPOSAL OR TREATMENT, OR ARRANGING WITH A
TRANSPORTER FOR TRANSPORT FOR DISPOSAL OR TREATMENT, OF HAZARDOUS SUBSTANCES
OWNED OR POSSESSED BY SUCH BORROWER OR OTHER USERS, AT ANY FACILITY OR
INCINERATION VESSEL OWNED OR OPERATED BY ANOTHER PERSON AND CONTAINING SUCH OR
ANY SIMILAR HAZARDOUS SUBSTANCE; (J) ANY ACTS OF BORROWER OR OTHER USERS OF THE
PROPERTY, IN ACCEPTING ANY HAZARDOUS SUBSTANCES FOR TRANSPORT TO DISPOSAL


 


27

















 


OR TREATMENT FACILITIES, INCINERATION VESSELS
OR SITES SELECTED BY BORROWER OR SUCH OTHER USERS, FROM WHICH THERE IS A
RELEASE, OR A THREATENED RELEASE OF ANY HAZARDOUS SUBSTANCE WHICH CAUSES THE
INCURRENCE OF COSTS FOR REMEDIATION; (K) ANY PERSONAL INJURY, WRONGFUL DEATH,
OR PROPERTY DAMAGE ARISING UNDER ANY STATUTORY OR COMMON LAW OR TORT LAW
THEORY, INCLUDING BUT NOT LIMITED TO DAMAGES ASSESSED FOR THE MAINTENANCE OF A
PRIVATE OR PUBLIC NUISANCE OR FOR THE CONDUCTING OF AN ABNORMALLY DANGEROUS ACTIVITY
ON OR NEAR THE PROPERTY; AND (1) ANY MISREPRESENTATION OR INACCURACY IN
ANY REPRESENTATION OR WARRANTY OR MATERIAL BREACH OR FAILURE TO PERFORM ANY
COVENANTS OR OTHER OBLIGATIONS PURSUANT TO ARTICLE 8.  NOTWITHSTANDING THE FOREGOING, BORROWER SHALL
NOT BE LIABLE UNDER THIS SECTION 9.4 FOR ANY LOSSES OR COSTS OF
REMEDIATION TO WHICH THE INDEMNIFIED PARTIES MAY BECOME SUBJECT TO THE
EXTENT SUCH LOSSES OR COSTS OF REMEDIATION ARISE BY REASON OF THE GROSS
NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF THE INDEMNIFIED
PARTIES OR LOSSES RESULTING FROM ACTS OR OMISSIONS ARISING AFTER A COMPLETED
FORECLOSURE OF THE PROPERTY OR ACCEPTANCE BY LENDER OF A DEED IN LIEU OF
FORECLOSURE.  THIS INDEMNITY SHALL
SURVIVE ANY TERMINATION, SATISFACTION OR FORECLOSURE OF THIS MORTGAGE, SUBJECT
TO THE PROVISIONS OF SECTION 10.5.


 


Section 9.5.            Duty to Defend; Attorneys’ Fees and Other Fees and
Expenses.  Upon written request by any Indemnified
Party, Borrower shall defend such Indemnified Party (if requested by any Indemnified
Party, in the name of the Indemnified Party) by attorneys and other
professionals approved by the Indemnified Parties.  Notwithstanding the foregoing, if the
defendants in any such claim or proceeding include both Borrower and any
Indemnified Party and Borrower and such Indemnified Party shall have reasonably
concluded that there are any legal defenses available to it and/or other
Indemnified Parties that are different from or additional to those available to
Borrower, such Indemnified Party shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such Indemnified Party, provided that no
compromise or settlement shall be entered without Borrower’s consent, which
consent shall not be unreasonably withheld. 
Upon demand, Borrower shall pay or, in the sole and absolute discretion
of the Indemnified Parties, reimburse, the Indemnified Parties for the payment
of reasonable fees and disbursements of attorneys, engineers, environmental
consultants, laboratories and other professionals in connection therewith.


 


28

















 


ARTICLE 10



WAIVERS


 


Section 10.1.          Waiver of Counterclaim.  To the extent permitted by applicable law,
Borrower hereby waives the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Mortgage,
the Loan Agreement, the Note, any of the other Loan Documents, or the
Obligations.


 


Section 10.2.          Marshalling and Other Matters.  To the fullest extent permitted by applicable
law, Borrower hereby waives the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Property or any
part thereof or any interest therein. 
Further, Borrower hereby expressly waives any and all rights of
redemption from sale under any order or decree of foreclosure of this Mortgage
on behalf of Borrower, and on behalf of each and every person acquiring any
interest in or title to the Property subsequent to the date of this Mortgage
and on behalf of all persons to the extent permitted by applicable law.


 


Section 10.3.          Waiver of Notice.  To the extent permitted by applicable law,
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this
Mortgage specifically and expressly provides for the giving of notice by Lender
to Borrower and except with respect to matters for which
Lender is required by applicable law to give notice, and
Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Mortgage does not
specifically and expressly provide for the giving of notice by Lender to Borrower.


 


Section 10.4.          Waiver of Statute of Limitations.  To the extent permitted by applicable law,
Borrower 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 or performance of its Other Obligations. 


 


Section 10.5.          Survival.  The
indemnifications made pursuant to Sections 9.3 and 9.4 herein and the
representations and warranties, covenants, and other obligations arising under Article 8,
shall continue indefinitely in full force and effect and shall survive and
shall in no way be impaired by:  any
satisfaction or other termination of this Mortgage, any assignment or other
transfer of all or any portion of this Mortgage or Lender’s interest in the
Property (but, in such case, shall benefit both Indemnified Parties and any
assignee or transferee), any exercise of Lender’s rights and remedies pursuant
hereto including but not limited to foreclosure or acceptance of a deed in lieu
of foreclosure, any exercise of any rights and remedies pursuant to the Loan
Agreement, the Note or any of the other Loan Documents, any transfer of all or
any portion of the Property (whether by Borrower or by Lender following
foreclosure or acceptance of a deed in lieu of foreclosure or at any other
time), any amendment to this Mortgage, the Loan Agreement, the Note or the
other Loan Documents, and any act or omission that might otherwise be construed
as a release or discharge of Borrower from the obligations pursuant
hereto.  Notwithstanding anything to the
contrary contained in this Mortgage or the other Loan Documents, Borrower shall
not have any obligations or liabilities under the indemnification under Section 9.4
herein or other indemnifications with respect to Hazardous Substances


 


29

















 


contained in the other Loan Documents with
respect to those obligations and liabilities that Borrower can prove arose
solely from Hazardous Substances that (i) were not present on or a threat
to the Property prior to the date that Lender or its nominee acquired title to
the Property, whether by foreclosure, exercise by power of sale, acceptance of
a deed-in-lieu of foreclosure or otherwise and (ii) were not the result of
any act or negligence of Borrower or any of Borrower’s affiliates, agents or
contractors.


 


ARTICLE 11



EXCULPATION


 


The provisions of Section 9.4 of the Loan Agreement
are hereby incorporated by reference into this Mortgage to the same extent and
with the same force as if fully set forth herein.


 


ARTICLE 12



NOTICES


 


All notices or other written communications hereunder
shall be delivered in accordance with Section 10.6 of the Loan Agreement.


 


ARTICLE 13



APPLICABLE LAW


 


Section 13.1.          GOVERNING LAW.  THIS
MORTGAGE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF
THE STATE WHERE THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE
THE PROPERTY IS LOCATED.


 


Section 13.2.          Usury Laws.  Notwithstanding anything to the contrary, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
interest, the interest contracted for, charged or received by Lender shall
never exceed the maximum lawful rate or amount, (b) in calculating whether
any interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or
event, Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.


 


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Section 13.3.          Provisions Subject to Applicable Law.  All rights, powers and remedies provided in
this Mortgage may be exercised only to the extent that the exercise thereof
does not violate any applicable provisions of law and are intended to be
limited to the extent necessary so that they will not render this Mortgage
invalid, unenforceable or not entitled to be recorded, registered or filed
under the provisions of any applicable law. 
If any term of this Mortgage or any application thereof shall be invalid
or unenforceable, the remainder of this Mortgage and any other application of
the term shall not be affected thereby.


 


ARTICLE 14



DEFINITIONS


 


All capitalized
terms not defined herein shall the respective meanings set forth in the Loan
Agreement.  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 “Borrower”
shall mean “each Borrower and any subsequent owner or owners of the Property or
any part thereof or any interest therein,” the word “Lender”
shall mean “Lender and any subsequent holder of the Note,” the word “Note” shall mean “the Note and any
other evidence of indebtedness secured by this Mortgage,” the word “Property” shall include any portion
of the Property and any interest therein, and the phrases “attorneys’
fees”, “legal fees”
and “counsel fees” shall include any and
all attorneys’, paralegal and law clerk fees and disbursements, including, but
not limited to, fees and disbursements at the pre-trial, trial and appellate
levels incurred or paid by Lender in protecting its interest in the Property,
the Leases and the Rents and enforcing its rights hereunder.


 


ARTICLE 15



MISCELLANEOUS PROVISIONS


 


Section 15.1.          No Oral Change.  This
Mortgage, and any provisions hereof, may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act or failure to
act on the part of Borrower or Lender, but only by an agreement in writing
signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.


 


Section 15.2.          Successors
and Assigns.  This Mortgage
shall be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns forever.


 


Section 15.3.          Inapplicable
Provisions.  If any
term, covenant or condition of the Loan Agreement, the Note or this Mortgage is
held to be invalid, illegal or unenforceable in any respect, the Loan
Agreement, the Note and this Mortgage shall be construed without such
provision.


 


31

















 


Section 15.4.          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.


 


Section 15.5.          Number and
Gender.  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.


 


Section 15.6.          Subrogation.  If any or
all of the proceeds of the Note have been used to extinguish, extend or renew
any indebtedness heretofore existing against the Property, then, to the extent
of the funds so used, Lender shall be subrogated to all of the rights, claims,
liens, titles, and interests existing against the Property heretofore held by,
or in favor of, the holder of such indebtedness and such former rights, claims,
liens, titles, and interests, if any, are not waived but rather are continued
in full force and effect in favor of Lender and are merged with the lien and
security interest created herein as cumulative security for the repayment of
the Debt, the performance and discharge of Borrower’s obligations hereunder,
under the Loan Agreement, the Note and the other Loan Documents and the
performance and discharge of the Other Obligations.


 


Section 15.7.          Entire
Agreement.  The Note, the Loan Agreement, this Mortgage
and the other Loan Documents constitute the entire understanding and agreement
between Borrower and Lender with respect to the transactions arising in
connection with the Debt and supersede all prior written or oral understandings
and agreements between Borrower and Lender with respect thereto.  Borrower hereby acknowledges that, except as
incorporated in writing in the Note, the Loan Agreement, this Mortgage and the
other Loan Documents, there are not, and were not, and no persons are or were
authorized by Lender to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
transaction which is the subject of the Note, the Loan Agreement, this Mortgage
and the other Loan Documents.


 


Section 15.8.          Limitation on Lender’s
Responsibility.  No provision of this Mortgage
shall operate to place any obligation or liability for the control, care,
management or repair of the Property upon Lender, nor shall it operate to make
Lender responsible or liable for any waste committed on the Property by the
tenants or any other Person, or for any dangerous or defective condition of the
Property, or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger.  Nothing herein
contained shall be construed as constituting Lender a “mortgagee in possession.”


 


ARTICLE 16



INTENTIONALLY OMITTED


 


32

















 


ARTICLE 17



SPECIAL MASSACHUSETTS PROVISIONS


 


Section 17.1.          The provisions of this Article are intended to supplement, and not
limit, the other provisions of this Security Instrument; provided, however,
that in the event the provisions of this Article expressly contradict any
other provision of this Security Instrument, the provisions of this Article shall
govern.


 


Section 17.2.          This Mortgage is granted with MORTGAGE COVENANTS
and is also upon the STATUTORY CONDITION, for any breach of which, or for any
breach of any other of the covenants, conditions, agreements and obligations of
the Mortgagor herein contained, or upon the occurrence of any of the events
specified as an Event of Default in this Mortgage or if the whole of the
principal sum of and the interest on any of the Note shall become due, the
Mortgagee shall have the STATUTORY POWER OF SALE.


 


[Signature Page to
Follow]


 


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IN WITNESS WHEREOF, THIS MORTGAGE has been executed by Borrower the day
and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  INLAND AMERICAN MALDEN, L.L.C.,
  a

  
	
   

  	
  Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  INLAND AMERICAN CERUZZI MALDEN

  
	
   

  	
   

  	
  MEMBER, L.L.C.,
  a Delaware limited liability company,

  
	
   

  	
   

  	
  its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  INLAND AMERICAN MALDEN MEMBER

  
	
   

  	
   

  	
   

  	
  II, L.L.C., a
  Delaware limited liability company,

  
	
   

  	
   

  	
   

  	
  its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  INLAND AMERICAN REAL ESTATE

  
	
   

  	
   

  	
   

  	
   

  	
  TRUST, INC.,
  a Maryland corporation,

  
	
   

  	
   

  	
   

  	
   

  	
  its Sole Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title: