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 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.
10
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