Exhibit 10.104


 


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 FRAMINGHAM, 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: 4150438

  
	
   

  	
  Borrower’s Federal Identification No.: 20-4797147

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  As of June 8, 2006

  
	
   

  	
  Location:

  	
  Framingham Stop & Shop

  
	
   

  	
   

  	
  19 Temple Street

  
	
   

  	
   

  	
  Framingham, 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 FRAMINGHAM, 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 NINE MILLION TWO HUNDRED SIXTY-EIGHT
THOUSAND FIVE HUNDRED FOURTEEN AND 00/100 DOLLARS ($9,268,514.00)
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;


 


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(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.


 


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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,


 


21

















 


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; (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;
and (j) Borrower shall, at its own cost and expense, implement an operations
and maintenance plan for asbestos at the Property, said plan to be reasonably
acceptable to Lender.


 


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


 


23

















 


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 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


 


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WITH THE
INTERNAL REVENUE SERVICE AN ACCURATE FORM 1099-B, STATEMENT FOR RECIPIENTS
OF PROCEEDS FROM REAL ESTATE, BROKER 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


 


25

















 


LIMITED
TO ANY OTHER PERSON WHO HOLDS OR ACQUIRES OR WILL HAVE HELD A PARTICIPATION OR
OTHER FULL OR PARTIAL INTEREST IN THE 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


 


26

















 


LIMITED
TO SAMPLING, TESTING, AND ANALYSIS OF SOIL, WATER, AIR, BUILDING MATERIALS AND
OTHER MATERIALS AND SUBSTANCES WHETHER 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;


 


27

















 


(J) ANY
ACTS OF BORROWER OR OTHER USERS OF THE PROPERTY, IN ACCEPTING ANY HAZARDOUS
SUBSTANCES FOR TRANSPORT TO DISPOSAL 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.


 


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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.


 


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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 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


 


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outstanding indebtedness
of Borrower to Lender, or if there is no such indebtedness, shall immediately
be returned to Borrower.


 


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.


 


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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.”


 


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ARTICLE 16



INTENTIONALLY OMITTED


 


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 FRAMINGHAM, L.L.C.,
  a

  	
   

  	
   

  
	
   

  	
   

  	
  Delaware
  limited liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  INLAND AMERICAN CERUZZI FRAMINGHAM

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
  its Sole Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  INLAND AMERICAN FRAMINGHAM 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: