Exhibit 10.102


 


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 BRISTOL, 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:  4150574


Borrower’s Federal
Identification No.:  20-4816159


 


Date:                                                                    As
of June 8, 2006


Location:                                              Bristol Stop & Shop


605 Metacom Avenue

Bristol, Rhode Island


 


County:                                                     Bristol


 

















 


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 BRISTOL, 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 EIGHT MILLION THREE HUNDRED SIXTY-EIGHT
THOUSAND SIXTY-SEVEN AND 00/100 DOLLARS ($8,368,067.00) 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


 


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


 


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


 


(j)                                     Insurance Proceeds.   All proceeds in respect of the
Property under any insurance policies covering the Property, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property
subject to the terms, provisions and conditions of the Loan Agreement;


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


property constituting the
Property, whether now owned or hereafter acquired, to the full extent that the
Fixtures, the Equipment and the Personal Property may be subject to the
Uniform Commercial Code (said portion of the Property so subject to the
Uniform Commercial Code being called the “Collateral”).
THE COLLATERAL IS OR INCLUDES FIXTURES. If an Event of Default shall occur and
be continuing, Lender, in addition to any other rights and remedies which it may have,
shall have and may exercise immediately and without demand, any and all
rights and remedies granted to a secured party upon default under the Uniform Commercial
Code, including, without limiting the generality of the foregoing, the right to
take possession of the Collateral or any part thereof, and to take such
other measures as Lender may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Lender after the
occurrence and during the continuance of an Event of Default, Borrower shall,
at its expense, assemble the Collateral and make it available to Lender at a
convenient place (at the Land if tangible property) reasonably acceptable to
Lender. Borrower shall pay to Lender on demand any and all expenses, including
reasonable legal expenses and attorneys’ fees, incurred or paid by Lender in
protecting its interest in the Collateral and in enforcing its rights hereunder
with respect to the Collateral after the occurrence and during the continuance
of an Event of Default. Any notice of sale, disposition or other intended
action by Lender with respect to the Collateral sent to Borrower in accordance
with the provisions hereof at least ten (10) business days prior to such
action, shall, except as otherwise provided by applicable law, constitute
commercially reasonable notice to Borrower. The proceeds of any disposition of
the Collateral, or any part thereof, may, except as otherwise required by
applicable law, be applied by Lender to the payment of the Debt in such
priority and proportions as Lender in its discretion shall deem proper. Borrower’s
(Debtor’s) principal place of business is as set forth on page one hereof
and the address of Lender (Secured Party) is as set forth on page one
hereof.


 


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


 


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


 


6

















 


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


 


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


 


CONDITIONS TO GRANT


 


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


 


IN TRUST, MORTGAGE COVENANT, AND THE STATUTORY CONDITION AND WITH THE
STATUTORY 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;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 3



BORROWER COVENANTS


 


Borrower covenants and agrees that:


 


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


 


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


 


8

















 


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


 


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


 


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


 


Section 3.6.                                   Payment for Labor and Materials.


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


ARTICLE 4



OBLIGATIONS AND RELIANCES


 


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


 


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


 


Section 4.3.                                   No Lender Obligations.


 


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


 


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


 


11

















 


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


 


ARTICLE 5



FURTHER ASSURANCES


 


Section 5.1.                                   Recording of Mortgage, Etc.   Borrower forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage and any of the other Loan Documents creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law
in order to publish notice of and fully to protect and perfect the lien or
security interest hereof upon, and the interest of Lender in, the Property. Borrower
will pay all taxes, filing, registration or recording fees, and all expenses
incident to the preparation, execution, acknowledgment and/or recording of the
Note, this Mortgage, the other Loan Documents, any note, deed of trust or
mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or
amendment of the foregoing documents, and all federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Mortgage, any deed of trust
or mortgage supplemental hereto, any security instrument with respect to the
Property or any instrument of further assurance, and any modification or
amendment of the foregoing documents, except where prohibited by law so to do.


 


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


 


12

















 


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


 


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


 


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


 


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


 


(c)                                  If at any time the United States of America, any
State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note, this Mortgage, or any of the other Loan
Documents or impose any other tax or charge on the same, Borrower will pay for
the same, with interest and penalties thereon, if any.


 


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


 


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


 


13

















 


ARTICLE 6



DUE ON SALE/ENCUMBRANCE


 


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


 


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


 


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


 


14

















 


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


 


ARTICLE 7



RIGHTS AND REMEDIES UPON DEFAULT


 


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


 


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


 


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


 


15

















 


the Property or any interest
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; and (i) Borrower
shall immediately notify Lender in writing of (A) any presence or Releases
or threatened Releases of Hazardous Substances in, on, under, from or migrating
towards the Property; (B) any non-compliance with any Environmental Laws
related in any way to the Property; (C) any actual or potential
Environmental Lien; (D) any required or proposed Remediation of
environmental conditions relating to the Property; and (E) any written or
oral notice or other communication of which Borrower becomes aware from any
source whatsoever (including but not limited to a governmental entity) relating
in any way to Hazardous Substances or Remediation thereof, possible liability
of any Person pursuant to any Environmental Law, other environmental conditions
in connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with anything referred to in this Article 8.


 


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


 


23

















 


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


 


ARTICLE 9



INDEMNIFICATIONS


 


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


 


24

















 


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


 


25





















 


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


 


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


 


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


 


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


 


26

















 


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


 


27

















 


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


 


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


 


28

















 


ARTICLE 10



WAIVERS


 


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


 


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


 


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


 


Section 10.4.                             Waiver of Statute of Limitations.   To the extent permitted by
applicable law, Borrower hereby expressly waives and releases to the fullest
extent permitted by law, the pleading of any statute of limitations as a
defense to payment of the Debt or performance of its Other Obligations.


 


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


 


29

















 


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


 


ARTICLE 11



EXCULPATION


 


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


 


ARTICLE 12



NOTICES


 


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


 


ARTICLE 13



APPLICABLE LAW


 


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


 


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


 


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


 


ARTICLE 14



DEFINITIONS


 


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


 


ARTICLE 15



MISCELLANEOUS PROVISIONS


 


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


 


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


 


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


 


31

















 


Section 15.4.                             Headings, Etc.   The headings and captions of various Sections of this
Mortgage are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.


 


Section 15.5.                             Number and Gender.   Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include
the plural and vice versa.


 


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


 


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


 


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


 


ARTICLE 16



INTENTIONALLY OMITTED


 


[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 BRISTOL, L.L.C., a

  
	
   

  	
   

  	
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  INLAND
  AMERICAN CERUZZI BRISTOL

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
  its Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  INLAND
  AMERICAN BRISTOL 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: