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FORM OF MORTGAGE/DEED OF TRUST AND VARIATIONS TABLE OF CONTENTS MORTGAGE/DEED OF TRUST FORM INSTRUCTIONS FOR COMPLETING MORTGAGE/DEED OF TRUST FORM 1 Legal Description 2 Note 3 Title Exceptions LENDER'S OPTIONAL FORM PROVISIONS FOR MORTGAGE/DEED OF TRUST 1 Deed of Trust 2 Construction Mortgage 3 Leasehold Mortgage 4 Mortgage Against Condominium Units 5 Mortgagor is Guarantor 6 Mortgage Recording Tax 7 Note is Not Annexed to Mortgage/Deed Of Trust Form 8 Material Agreements 9 New York Provisions 10 No Election of Remedies 11 Use of Insurance Proceeds For Restoration of Fire and Casualty 12 Permitted Transfers 13 Mortgage as Subordinate Mortgage 14 Mortgage As Wraparound Mortgage 15 Mortgage as Prior Mortgage: Subordinate Mortgages Provisions Relating to 16 Billboard Announcing Loan 17 Cross-Default 18 Financial Covenants By Borrower 19 20 Interest Rate Swap Default Rate 21 Late Charge 22 Mortgagee's Right to Contest Assessments 23 Non-U.S. Corporations 24 Consent To Jurisdiction 25 Blanket Mortgage 26 Applicable Law 27 Exceptions to Nonrecourse Provisions 28 Partial Releases 29 Consolidation of Mortgages 30 Special Purpose Restrictions for Borrowing Entity 31 Other "Securitization" Provisions 32 Loan Agreement 33 Consent To Relief From Automatic Stay BORROWER'S RIDER TO MORTGAGE/DEED OF TRUST FORM 1 Inconsistency 2 Nonrecourse 3 Notice of Default and Opportunity to Cure 4 Limitation Costs on Mortgagor's Liability For Increased 5 Confidentiality 6 Costs Arising From Mortgagee's Sale of Interests 7 Damages 8 Mortgaged Property 9 Mortgagee's Approval 10 Approval of Agreement 11 Alterations 12 13 Arbitration Insurance 13.1 Types of Insurance Not Required To Be Provided by Mortgagor 13.2 Insurance Settlements 14 Use of Insurance Proceeds For Restoration 15 Use of Award for Restoration 16 Permitted Transfers 17 Permitted Subordinated Mortgages 18 Subordination of Mortgage 19 Judgments Against Mortgaged Property 20 No Cross-Defaults 21 Action by Mortgagee to Cure Default 22 Limits On Mortgagor's Indemnity And Covenants 23 Estoppel By Mortgagee 24 Leases 24.1 Permitted Leases 24.2 Mortgagor's Form of Lease 24.3 Waiver or Modification by Mortgagor; Compliance With Leases 24.4 Rent Abatements 24.5 Nondisturbance Agreement 24.6 Mortgagor's Right to Terminate Leases 24.7 Noncompliance By Tenants 25 Challenged Liens and Encumbrances 26 Mortgagor's Right to Contest Violations 27 Mortgagor's Right to Contest Assessments 28 Creation of Reserve Fund 29 Reserve Fund Refund 30 Waiver Of Reserve Fund If Held By Prior Lender 31 Limits On Mortgagor's Representations, Warranties, And Covenants 32 Environmental Audits BORROWER'S OPTIONAL PROVISIONS FOR MORTGAGE/DEED OF TRUST FORM 1 Mortgagor's Leasehold and Fee Interests 2 Real Estate is Vacant or Non-Income Producing MORTGAGE/DEED OF TRUST FORM1 MORTGAGE MADE BY {{{31/BORROWER}}} TO {{{1/LENDER}}} DATED: {{{28/DATE OF ORIGINAL LOAN CLOSING}}} LOCATION OF REAL ESTATE: {{{53/ADDRESS ESTATE}}} The real estate subject to this Mortgage is {{{54/TAX MAP IDENTIFICATION OF REAL ESTATE}}}. also OF REAL known as 1 Mortgages and deeds of trust are discussed generally in Chapter 6 of this book. This Chapter may discuss variations of the following form which are not included in such form and which are applicable to your particular transaction. State Variations Each state typically has unique requirements for mortgages recorded in such state. For example, in many states, a mortgage cannot be recorded unless the mortgage recites that it was "Prepared by" a named person who signs the mortgage. Many of these recording requirements are specified in sources such as the CD-ROM by First American Title Insurance Company entitled Underwriting Library (version 3.0, 1996), or Martindale-Hubbell Law Digest (1996) (see, for example, the headings for "Acknowledgments," "Chattel Mortgages," "Commercial Code," "Deeds of Trust," "Interest," "Mortgages of Personal Property," "Mortgages of Real Property," "Real Property," "Records," "Torrens Act," "Trust Deeds," and "Usury"). However, these are no substitute for the guidance of local counsel. RECORD AND RETURN TO: {{{12/LENDER'S ATTORNEY}}}{{{13/LAW FIRM OF LENDER'S ATTORNEY}}}{{{14/ADDRESS OF LENDER'S ATTORNEY}}} MORTGAGE THIS MORTGAGE is made {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, by {{{31/BORROWER}}}, {{{40/TYPE OF BORROWER}}}, having an address at {{{32/ADDRESS OF BORROWER}}} (the "Mortgagor")2, to {{{1/LENDER}}}, {{{9/TYPE OF LENDER}}}, having an address at {{{2/ADDRESS OF LENDER (FOR NOTICES)}}} (the "Mortgagee").3 W I T N E S S E T H: Recitals; Mortgaged Property WHEREAS, the Mortgagor is the owner of the fee estate in the property described in Schedule A attached hereto (the "Real Estate"), which is located at {{{53/ADDRESS OF REAL ESTATE}}}; NOW THEREFORE, to secure the payment of an indebtedness in the principal sum of {{{19/AMOUNT OF LOAN}}} (${{{19/AMOUNT OF LOAN}}}) Dollars (the "Original Principal Amount"), lawful money of the United States of America, to be paid with interest (said indebtedness, interest and all other sums which may or shall become due pursuant to the Loan Documents being hereinafter collectively referred to as the "Indebtedness") according to a certain note, dated the date of this Mortgage, given by the Mortgagor to the Mortgagee (the "Note"), and all renewals, extensions, modifications or replacements of the Note, the Mortgagor has mortgaged, given, granted, bargained, sold, aliened, enfeoffed, conveyed, confirmed and assigned, and by these presents does mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign unto the Mortgagee forever all right, title and interest of the Mortgagor now owned, or hereafter acquired, in and to the property, rights and interests specified below in this Section (such property, rights and interests being hereinafter collectively referred to as the "Mortgaged Property"): 2 "Borrower" or "Debtor" is preferable to "Mortgagor" since these terms are easier to understand, and their uniform use in the Loan Documents would make the Loan Documents more consistent. However, "Mortgagor" is used here since it is more customary. 3 "Lender" or "Secured Party" is preferable to "Mortgagee" since these terms are easier to understand, and their uniform use in the Loan Documents would make the Loan Documents more consistent. However, "Mortgagee" is used here since it is more customary. (a) all property described in Schedule A annexed to this Mortgage (such property being called the "Real Estate," which term includes all property enclosed within the perimeter description set forth in Schedule A, including, without limitation, all minerals and other property located below the surface enclosed by such perimeter description, and all other rights and other property located on or above such surface or relating to the airspace above such surface), which the Mortgagor represents, warrants, and covenants is located at {{{53/ADDRESS OF REAL ESTATE}}}; (b) all buildings, structures, fixtures and other improvements now or hereafter located on the Real Estate (including, but not limited to, furnaces, boilers, oil burners, radiators and piping, coal stokers, fuel lines, plumbing and bathroom fixtures, refrigeration, air conditioning and sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges, ovens, disposals, dishwashers, hood and fan combinations, awnings, screens, window shades, elevators, motors, dynamos, refrigerators, kitchen cabinets, incinerators, kitchen equipment, laundry equipment, plants and shrubbery), and all alterations and replacements to any of the above items specified in this subparagraph (all of the above items in this subparagraph being collectively called the "Improvements"); (c) all of the estate, right, title, claim or demand of any nature whatsoever of the Mortgagor, either in law or in equity, in possession or expectancy, in and to: I) the property located at {{{53/ADDRESS OF REAL ESTATE}}}, II) all additional lands and estates hereafter acquired by Mortgagor for use in connection with the Real Estate and all lands and estates that may, from time to time, by supplemental mortgage or additional agreement, be made subject to the lien of this Mortgage, III) 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 Real Estate, to the center line thereof, and IV) all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Mortgagor of, in and to the Real Estate and all other interests which are included in the Mortgaged Property; (d) all easements, rights-of-way, strips and gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, mineral rights, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to the Mortgaged Property (or any part thereof or interest therein) (including, without limitation, all zoning rights, air rights and similar or comparable rights of any nature whatsoever now or hereafter appurtenant to the Real Estate or now or hereafter transferred to the Real Estate or the Mortgagor); (e) I) all machinery, apparatus, equipment, fittings, fixtures and other property of every kind and nature whatsoever (and all additions to any such property, and all renewals and replacements of any such property, and all substitutions for any such property) (all such machinery, apparatus, equipment, fittings, fixtures and other property, and all additions, renewals, replacements, and substitutions being called the "Equipment"), to the extent such Equipment (or any part thereof or interest therein) is now owned or is hereafter acquired by the Mortgagor, if: 1) such Equipment is now or hereafter located upon or in, or attached to, any portion of the Mortgaged Property (or any part thereof or interest therein), or appurtenances thereto, or 2) such Equipment is not located on the Mortgaged Property (or any part thereof or interest therein) but is purchased with the proceeds of the Indebtedness, or 3) such Equipment is used or usable in connection with the present or future improvement, maintenance, operation and occupancy of the Mortgaged Property (or any part thereof or interest therein) and II) all building equipment, materials and supplies of any nature whatsoever owned by the Mortgagor, now or hereafter located upon, or intended to be incorporated in, the Mortgaged Property (or any part thereof or interest therein), and whether stored at the Mortgage Property or elsewhere (all the items specified above in this paragraph being called the "Tangible Personalty"), and III) all right, title and interest of the Mortgagor in and to any of the Tangible Personalty which may be subject to any security agreement (as defined in the Uniform Commercial Code of the State of {{{87/STATE WHOSE LAW GOVERNS}}} (the "Uniform Commercial Code")), superior in lien to the lien of this Mortgage, and IV) all proceeds and products of each of the items specified above in this paragraph; (f) all awards and payments, including, without limitation, interest thereon, and the right to receive such awards and payments, which may be made with respect to the Mortgaged Property (or any part thereof or interest therein), whether A) from the exercise of the right of eminent domain (including any transfer made in lieu of the exercise of said right), or B) for any other injury to or decrease in the value of the Mortgaged Property (or any part thereof or interest therein); (g) all leases, licenses, concessions, occupancy agreements, and other agreements affecting the use or occupancy of the Mortgaged Property (or any portion thereof or interest therein) now or hereafter entered into and all guarantees of any of the foregoing (all such leases, licenses, concessions, occupancy agreements, and other agreements, and guarantees being collectively called the "Leases") and all rents, issues and profits of the Mortgaged Property (or any part thereof or interest therein) (such rents, issues and profits being called the "Rents"), and all right, title and interest of Mortgagor under each Lease, including, without limitation, all cash or securities (if any) deposited under each Lease to secure performance by any tenant or occupant under such Lease of its respective obligations under such Lease and the right to enforce, whether by action at law or in equity or by other means, all provisions, covenants and agreements of such Lease; (h) all rights in and to (I) all contracts from time to time executed by the Mortgagor, or any manager or agent on its behalf, relating to the ownership, construction, maintenance, repair, operation, occupancy, sale or financing of the Mortgaged Property (or any part thereof, or interest therein) and (II) all agreements relating to the purchase or lease of the Mortgaged Property (or any part thereof or interest therein) or any property which is adjacent to, or is or can be used in common with, the Mortgaged Property (or any part thereof or interest therein), together with the right to exercise all options under each such contract or agreement, and under each lease of any Tangible Personalty, (III) all consents, franchises, licenses, building permits, certificates of occupancy and other governmental approvals relating to construction, completion, occupancy, use or operation of the Mortgaged Property (or any part thereof or interest therein), and (IV) all drawings, plans, specifications and similar or related items relating to the Mortgaged Property (or any part thereof or interest therein); (i) all trade names, trademarks, logos, copyrights, patents, intellectual property, good will and books and records, electronic media, computer software, and data in paper, electronic, microwave, and other formats, relating to or used in connection with the operation of the Mortgaged Property (or any part thereof or interest therein); and all general intangibles related to the operation of the Mortgaged Property (or any part thereof or interest therein) now existing or hereafter arising; (j) all accounts and revenues arising from the operation of the Mortgaged Property (or any part thereof or interest therein), including, without limitation, (i) each right to payment now existing or hereafter arising for license or rental of any room, suite, or other space, or for goods sold or leased or for services rendered, whether or not yet earned by performance, arising from the operation of the Mortgaged Property (or any part thereof or interest therein) and (ii) all rights to payment from each credit-card, charge-card, or debit-card organization or entity (including, without limitation, payments arising from the use of the American Express Card, the Visa Card, the Carte Blanche Card, the Mastercard, the Discover Card or any other credit card, charge card, or debit card, and including any such card now existing or hereafter created), and (iii) all substitutions for each such account or item of revenue, all proceeds of each such account or item of revenue (whether cash or non-cash, movable or immovable, tangible or intangible) received upon the sale, exchange, transfer, collection or other disposition or substitution of any such account or item of revenue, and any and all of the foregoing items specified in this paragraph, and all proceeds from each such item; (k) all proceeds of, and all unearned premiums on, each insurance policy covering the Mortgaged Property (or any part thereof or interest therein), including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu of such proceeds, for damage to the Mortgaged Property (or any part thereof or interest therein); (l) Mortgagor's interest in all claims and causes of action relating directly or indirectly to the Mortgaged Property (or any part thereof or interest therein), whether such claims or causes of action arise in Mortgagor's name or such claims or causes of action are acquired by Mortgagor, directly or indirectly, by subrogation or otherwise; and the right, in the name and on behalf of the Mortgagor, to appear in and defend any action or proceeding brought with respect to the Mortgaged Property (or any part thereof or interest therein) and to commence any action or proceeding to protect the interest of the Mortgagee in the Mortgaged Property (or any part thereof or interest therein);4 (m) all proceeds, whether cash or non-cash, of each of the foregoing items specified in the above subparagraphs (a) to (l); and (n) the proceeds of any loan secured by any interest in the Mortgaged Property described in the preceding subparagraphs (a) through (m). TO HAVE AND TO HOLD the above granted and described Mortgaged Property unto and to the proper use and benefit of the Mortgagee, and the successors and assigns of the Mortgagee, forever. Mortgagor's Covenants, Representations and Warranties The Mortgagor covenants and agrees with, and represents and warrants to, the Mortgagee as follows: 2.1 Mortgagor's Covenant to Pay Indebtedness. The Mortgagor will pay the Indebtedness pursuant to the Note (a copy of which is annexed hereto as Schedule B), and pursuant to this Mortgage. 4 Gazza v. New York State Department of Environmental Conservation, 89 N.Y. 603, __ N.Y.S.2d __ (1997), the court in footnote 3 stated that it was not opining as to whether a takings claim could be assigned. However, various commentators have suggested that such a claim would be assignable under Section 13-101 of the New York General Obligations Law, and that real estate instruments should therefore contain such an assignment. E.g., Armentano, "Taking Claims - Property Owners Limited in Challenging Zoning Regulations," New York Law Journal, Mar. 5, 1997 at 5. These causes of action could include a claim for a taking. In 2.2 Estoppels. The Mortgagor, within ten (10) days after request by the Mortgagee and at the Mortgagor's expense, will furnish the Mortgagee with a statement, duly acknowledged and certified, setting forth the amount of the Indebtedness and the offsets or defenses thereto, if any. 2.3 Indemnification By Mortgagor. Notwithstanding anything in the Loan Documents to the contrary, the Mortgagor shall indemnify and hold the Mortgagee harmless, and defend the Mortgagee, at the Mortgagor's sole cost and expense, against all loss, liability, cost, expense (including, without limitation, reasonable attorneys' fees and disbursements of the Mortgagee's counsel, whether in-house staff, retained firms or otherwise), and against all claims, actions, procedures, and suits, arising out of or in connection with: [a] the Indebtedness (defined below), any of the Loan Documents, or any ongoing matter arising out of any Loan Document or any transaction contemplated by any Loan Document, including, but not limited to, all costs of appraisal or reappraisal of all or any portion of any collateral for the Indebtedness or of the granting by the Mortgagee, in its sole and absolute discretion, of any subordination, nondisturbance, or other agreement, [b] any amendment to, or restructuring Indebtedness, or any of the Loan Documents, of, the [c] any lawful action that may be taken by the Mortgagee in connection with the enforcement of the provisions of any of the Loan Documents (including, without limitation, the provisions of this indemnity), whether or not suit is filed in connection with the same, or in connection with: 1) the Mortgagor, 2) any guarantor of all or any portion of the Indebtedness, or 3) any member, partner, joint venturer or shareholder of either the Mortgagor or any guarantor, becoming a subject of a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding, or [d] any other litigation relating to the Indebtedness or any Loan Document, [e] the past, present, or future sale (or offering for sale) of stock, partnership interests, or other equity interests in the Mortgagor, [f] any liability to brokers, finders or similar persons or under any applicable securities or blue sky laws. All sums expended by the Mortgagee on account of any loss, liability, cost, expense, claim, action, proceeding or suit (the "Indemnified Liabilities") shall be reimbursed by the Mortgagor to the Mortgagee, on demand by the Mortgagee, and until reimbursed by the Mortgagor pursuant hereto, shall be deemed additional indebtedness evidenced by this Note and shall bear interest at the Default Rate (defined below). The obligations of the Mortgagor under this paragraph shall, notwithstanding any exculpatory or other provision of any nature whatsoever which may be set forth in any of the Loan Documents, constitute the personal recourse undertakings, obligations and liabilities of the Mortgagor. 2.4 Capital Adequacy Rules. If, after the date of the Note, the Mortgagee shall have determined that: [a] the applicability of any law, rule, regulation or guideline which relates to capital adequacy or loan reserves, or which has been adopted or which arises out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," [b] the adoption, after the date of the Note, of any other law, rule, regulation or guideline regarding capital adequacy or loan reserves, [c] any change in any law, rule, regulation or guideline specified in subparagraphs or above in this Section , or in the interpretation or administration of any of the foregoing laws, rules, regulations or guidelines by any domestic or foreign governmental authority, central bank or comparable agency charged with the interpretation or administration of any such law, rule, regulation or guideline (each such authority, central bank, and agency being called an "Authority"), or [d] the compliance by the Mortgagee or any Transferee (defined below) (the Mortgagee and each Transferee being called a "Holder"), or any lending office of an Holder, as the case may be, or by any such Holder's holding company or affiliate, as the case may be, with any request or directive regarding capital adequacy (whether or not having the force of law) of any Authority (each such law, rule, regulation, guideline, interpretation, administration, request, or directive being called a "Requirement"), has, or would have, the effect of reducing the rate of return on any such Holder's capital, or on the capital of any such Holder's holding company or affiliate, as the case may be, as a result of: 1) having made the loan in the principal sum of ${{{19/AMOUNT OF LOAN}}} made by the Mortgagee to the Mortgagor which is evidenced by the Note (the "Loan"), or any portion of the Loan, or 2) having any interest in the Loan, or 3) having any obligations with respect to the Loan, or under any of the Loan Documents (defined below), if such rate of return is reduced to a level below that which any such Holder, or any such Holder's holding company, as the case may be, could have achieved but for any such applicability, adoption, change or compliance specified in subparagraphs to in this Section (taking into consideration any such Holder's policies or the policies of any such Holder's holding company, as the case may be, with respect to capital adequacy), then, from time to time, the Mortgagor shall pay to the Mortgagee such additional amount or amounts as will compensate each such Holder, and each such Holder's holding company or affiliate, if any, for such reduction. Any amount or amounts payable by the Mortgagor to the Mortgagee in accordance with the provisions of this Section 2.4 shall be paid by the Mortgagor to the Mortgagee within ten (10) days of receipt by the Mortgagor from the Mortgagee of a statement setting forth the amount or amounts due pursuant to this Section 2.4 and the basis for the determination from time to time of such amount or amounts, which statement shall be conclusive and binding upon the Mortgagor unless and to the extent the Mortgagor shall provide clear and convincing proof to the Mortgagee of a material error by the Mortgagee in such statement. 2.5 Mortgagee's Administrative Fees. The Mortgagor acknowledges and confirms that the Mortgagee has imposed certain administrative, processing, commitment, and other fees (collectively called "Administrative Fees") in connection with each extension, renewal, modification, amendment, termination and administration of any of Mortgagee's loans or other business transactions and the release or substitution of collateral for any such loan or transaction (the occurrence of any such extension, renewal, modification, amendment, termination, administration, release, or substitution being called an "Administrative Change"). The Mortgagor hereby acknowledges and agrees to pay, immediately, with or without demand, all such Administrative Fees (as the same may be increased or decreased from time to time) relating to the Indebtedness or any Loan Document, and each additional fee of a similar type or nature which may be imposed by the Mortgagee from time to time, upon the occurrence of any Administrative Change. 2.6 Changes in Taxation of Mortgages and Debts. In the event of the passage after the date of this Mortgage of any law deducting from the value of real property, for the purpose of taxation, any lien or encumbrance on such real property or changing in any way the laws for the taxation of mortgages or debts secured by mortgages for state or local purposes or the manner of the collection of any such taxes, and imposing a tax, either directly or indirectly, on the Indebtedness, or any Loan Document, then the Mortgagor shall, if permitted by law, pay any tax imposed as a result of any such law on or before the last day for payment without penalty, or within fifteen (15) days after demand by the Mortgagee, whichever is less. If, in the opinion of the attorneys for the Mortgagee, the Mortgagor is not permitted by law to pay such taxes, then the Mortgagee shall have the right, at its option, to declare the Indebtedness due and payable on a date specified in a Notice (defined below) to the Mortgagor, which date shall be not less than thirty (30) days after the date such Notice is given. 2.7 No Credit For Assessment; Application of Payments on Indebtedness. The Mortgagor will not claim or demand, or be entitled to, any credit or credits (on account of the Indebtedness) for any part of the Assessments (defined below) assessed against the Mortgaged Property (or any part thereof or interest therein). No deduction shall otherwise be made or claimed by the Mortgagor from the taxable value of the Mortgaged Property (or any part thereof or interest therein), by reason of this Mortgage or the Indebtedness. If at any time this Mortgage shall secure less than all of the principal amount of the Indebtedness, then each repayment of the principal amount of the Indebtedness shall be applied first against the portion of the Indebtedness which is not secured by this Mortgage until such portion has been completely satisfied. 2.8 Revenue Stamps. If at any time the United States of America, any state thereof, or any governmental subdivision of any such state, shall require revenue or other stamps to be affixed to any Loan Document, then the Mortgagor will, upon demand by the Mortgagee, pay for such stamps, with interest and penalties thereon, if any, and affix them to such Loan Document (to the extent required by law). 2.9 Recording of Mortgage. The Mortgagor will cause: 1) this Mortgage and 2) each extension, modification, renewal or replacement of this Mortgage, and 3) each security instrument creating a lien or evidencing the lien of this Mortgage upon the Mortgaged Property (or any part thereof or interest therein), and 4) each instrument of further assurance, to be filed, registered or recorded (immediately upon execution and delivery of each such document to the Mortgagee or its agents, but in any event within ten (10) days of such execution and delivery), 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, preserve and perfect the lien of this Mortgage upon, and the interest of the Mortgagee in, the Mortgaged Property. The Mortgagor will pay all title insurance fees and charges, all filing, registration and recording fees, and all expenses incident to the preparation, execution and acknowledgement of this Mortgage, each mortgage supplemental hereto, each security instrument with respect to the Mortgaged Property (or any part thereof or interest therein), and each instrument of further assurance, and all federal, state, county, municipal, and other governmental taxes, duties, imposts, assessments and charges arising out of or in connection with the Indebtedness or the execution and delivery of this Mortgage, each mortgage supplemental hereto, each security instrument with respect to the Mortgaged Property (or any part thereof or interest therein), and each instrument of further assurance, or other Loan Document (all such taxes, duties, imposts, assessments and charges being called the "Mortgage Taxes"). The Mortgagor shall hold harmless and indemnify the Mortgagee, and its successors and assigns, against all liability incurred by reason of the imposition of any such Mortgage Tax on the making and recording of this Mortgage. 2.10 Cooperation by Mortgagor. The Mortgagor will (at the cost of the Mortgagor, and without expense to the Mortgagee), do, execute, acknowledge and deliver all such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers and assurances as the Mortgagee shall, from time to time, require for the better assuring, conveying, assigning, transferring and confirming to and unto the Mortgagee the property and rights mortgaged by this Mortgage or intended now or hereafter so to be, or which the Mortgagor may be or may hereafter become bound to convey or assign to the Mortgagee, or for carrying out the intention or facilitating the performance of the terms of any Loan Document or for filing, registering or recording this Mortgage. On demand from the Mortgagee, the Mortgagor will execute and deliver, and the Mortgagor hereby authorizes the Mortgagee to execute in the name of the Mortgagor (to the extent the Mortgagee may lawfully do so), one or more financing statements, chattel mortgages or comparable security instruments, to evidence more effectively each lien and security interest arising pursuant to this Mortgage or any other Loan Document upon the Mortgaged Property. The Mortgagor hereby authorizes the Mortgagee to act as the attorney-in-fact of the Mortgagor to take any action which the Mortgagor is required or authorized to take pursuant to any Loan Document. This power of attorney is coupled with an interest and is granted for a valuable consideration, and is irrevocable. 2.11 Mortgagor's General Representations and Warranties [a] Subject only to those exceptions to title specifically set forth in Schedule C annexed to this Mortgage (the "Permitted Exceptions"), the Mortgagor warrants that it is the owner of, and the holder of title to, the Mortgaged Property. [b] The Mortgagor also represents and warrants that: (1) the Mortgagor is now, and, after giving effect to this Mortgage, will be, both solvent and able to pay its debts as they come due, (2) there has been no material adverse change in the financial condition of the Mortgagor or any guarantor of the Indebtedness since the date of the Mortgagor's application for the loan or other financing or credit secured by this Mortgage (such loan, financing or credit being called the "Loan"), (3) the Mortgagor is not in default under any note, loan or security agreement to which it is a party, and the Mortgagor is not in default in payment of any of its indebtedness, (4) the execution and delivery of this Mortgage, and the granting of any lien or security interest, by the Mortgagor to the Mortgagee, does not constitute a "fraudulent conveyance" within the meaning of Title 11 of the United States Code (the "Bankruptcy Code") as now constituted or under any other applicable statute, (5) no bankruptcy or insolvency proceeding is pending or contemplated by or against the Mortgagor, (6) there is no existing, threatened or pending action or proceeding affecting the Mortgaged Property (or any part thereof or interest therein), and (7) the Real Estate is not part of a larger tract of land owned or leased by the Mortgagor. [c] The Mortgagor (and each undersigned representative of the Mortgagor, if any) additionally represents and warrants that: (1) the Mortgagor has full power, authority and legal right to execute this Mortgage, and to mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign the Mortgaged Property pursuant to the terms of this Mortgage and to keep and observe all of the terms of this Mortgage on the Mortgagor's part to be performed, (2) if the Mortgagor is a corporation, the Mortgagor is a duly organized and presently existing corporation (of the type specified in the first paragraph of this Mortgage) and this Mortgage has been executed by authority of its Board of Directors and with the requisite consent of the holders of the outstanding shares of its capital stock entitled to vote thereon, if such consent is required under the provisions of the certificate of incorporation of the Mortgagor, (3) if the Mortgagor is a partnership, the Mortgagor is a duly authorized and validly existing partnership (of the type specified in the first paragraph of this Mortgage), and this Mortgage has been executed by a duly authorized general partner of such partnership, and (4) if the Mortgagor is a limited liability company, then the Mortgagor is a duly authorized and validly existing limited liability company (of the type specified in the first paragraph of this Mortgage), and this Mortgage has been executed by a duly authorized member of such limited liability company. 2.12 No Brokers. The Mortgagor covenants and agrees that no brokerage commission or other fee, commission or compensation is to be paid by the Mortgagee on account of the Loan or any transaction between the Mortgagor and the Mortgagee. The Mortgagor agrees to indemnify the Mortgagee against all claims for any such fee, commission, or compensation. 2.13 Property and Liability Insurance [a] The Mortgagor: (1) will keep the Improvements and the Tangible Personalty insured with all-risk coverage against loss or damage by fire, vandalism, malicious mischief and such other hazards (each such fire and other hazard being called a "Casualty") as the Mortgagee shall from time to time require, in amounts approved by the Mortgagee, which amounts shall in no event be less than one hundred per cent (100%) of the replacement cost of the Improvements and the Tangible Personalty and shall be sufficient to meet all applicable co-insurance requirements, and (2) will maintain liability, rental and business interruption insurance and such other forms of insurance coverage with respect to the Mortgaged Property as the Mortgagee shall from time to time require in amounts approved by the Mortgagee. If the Real Estate is improved, and any portion of the Real Estate or any interest therein is located in a federally designated "special flood hazard area," then a flood insurance policy shall also be delivered by the Mortgagor to the Mortgagee (all insurance policies required to be maintained by the Mortgagor pursuant to this Mortgage are collectively called the "Policies"). If no portion of the Real Estate is located in a federally designated "special flood hazard area," then such fact shall be substantiated by a certificate, in form satisfactory to the Mortgagee, from a licensed surveyor, appraiser or professional engineer or other qualified person, satisfactory to the Mortgagee, in accordance with all applicable laws and regulations. [b] The Mortgagor shall at all times comply with, and shall cause both the Mortgaged Property, and the use, occupancy, operation, maintenance, alteration, repair and restoration of the Mortgaged Property, to comply with, the terms, conditions, stipulations and requirements of the Policies (all such terms, conditions, stipulations and requirements being called the "Insurance Requirements"). Each Policy shall be issued by an insurer having a minimum policy holders rating of "A" pursuant the latest rating publication of Property and Casualty Insurers by A.M. Best Company (or, in the absence of such publication, or if A.M. Best Company shall change its ratings or the standards for such ratings, or shall fail to publish them currently, or shall not maintain its current reputation, then each Policy shall be issued by an insurer having a minimum rating pursuant to such rating standards as may be designated by the Mortgagee in its sole discretion), at all times when such Policy is in effect. Each such insurer must be lawfully doing business in {{{56/STATE IN WHICH REAL ESTATE IS LOCATED}}} and must otherwise be acceptable in all respects to the Mortgagee. All Policies shall, with respect to the Improvements, contain the standard mortgagee non-contribution clause endorsement (subject to the Mortgagee's approval in its sole discretion). All Policies shall, with respect to the remaining portion of the Mortgaged Property, contain such endorsement to the extent such endorsement is available. To the extent that such endorsement is not available with respect to any such portion of the Mortgaged Property, then the Policies shall contain, with respect to such portion, a lender's loss payable clause endorsement (subject to the Mortgagee's approval in its sole discretion), all naming the Mortgagee as the person to which all payments made by the insurer under such Policies shall be paid. All Policies shall otherwise be in form and substance satisfactory in all respects to the Mortgagee. Blanket insurance policies shall not be acceptable for the purposes of this Section unless otherwise approved in writing to the contrary by the Mortgagee. Subject to the provisions of Section of this Mortgage, the Mortgagor shall pay the premiums for the Policies as the same become due and payable. At the request of the Mortgagee, the Mortgagor will deliver the Policies to the Mortgagee. Not later than thirty (30) days prior to the expiration date of each Policy, the Mortgagor will deliver to the Mortgagee a renewal policy or policies (in replacement of such Policy) marked "premium paid" (with respect to the premium under such Policy for the next twelve month period) by the insurer issuing such Policy or accompanied by other evidence of payment of premium which is satisfactory to the Mortgagee. The insurer issuing each Policy must be obligated, pursuant to an endorsement or certificate satisfactory to the Mortgagee in its sole discretion, to give at least thirty (30) days prior written notice to the Mortgagee of the expiration, cancellation, termination, or modification of such Policy. If at any time the Mortgagee is not in receipt of written evidence that all insurance required under this Mortgage is in full force and effect, then the Mortgagee shall have the right, without notice to the Mortgagor, to take such action as the Mortgagee deems necessary to protect its interest in the Mortgaged Property (or any part thereof or interest therein), including, without limitation, the obtaining of such insurance coverage as the Mortgagee in its sole discretion deems appropriate, and all expenses incurred by the Mortgagee in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by the Mortgagor to the Mortgagee upon demand and until paid shall be secured by this Mortgage in accordance with the provisions of this Mortgage. [c] If the Mortgaged Property (or any part thereof or interest therein) shall be damaged or destroyed, in whole or in part, by fire or other hazard or casualty (such damage or destruction being called the "Damage"), then the Mortgagor shall give Notice of such Damage to the Mortgagee, within five (5) days after the date of the Damage, and the Mortgagor hereby authorizes and empowers the Mortgagee, at the Mortgagee's option and at the Mortgagee's sole discretion, as attorney-in-fact for the Mortgagor, to give notice of loss and make proof of loss, to adjust and compromise any claim under any Policy, to appear in and prosecute any action arising from any Policy, to collect and receive insurance proceeds and to deduct therefrom the Mortgagee's expenses incurred in the collection process, to endorse any checks, drafts or other instruments representing any proceeds of such insurance, whether payable by reason of loss under any Policy or otherwise, and to make any election required or permitted under any Policy relating to repair or restoration. All proceeds of insurance on account of any Damage, to the extent received by the Mortgagor, shall be deemed to have been received in trust for the Mortgagee, and shall be immediately paid by the Mortgagor to the Mortgagee. Any sums paid to the Mortgagee by any insurer may be retained and applied by the Mortgagee toward payment of the Indebtedness, whether or not then due and payable, in such order, priority and proportions as the Mortgagee in its discretion shall deem proper. At the discretion of the Mortgagee, any sums paid to the Mortgagee by any insurer, on account of any Damage, may: 1) be held, either in whole or in part, as additional security for the Indebtedness, or 2) be paid, either in whole or in part, to the Mortgagor for such purposes as the Mortgagee shall designate, or 3) be paid, either in whole or in part, to such third parties, for the repair or restoration of the Damage, as the Mortgagee may determine. If the Mortgagee shall receive and retain any insurance proceeds on account of any Damage, then the lien of this Mortgage shall be reduced only by the amount of such proceeds actually applied by the Mortgagee in reduction of the Indebtedness. The Mortgagee shall not be deemed to have applied any insurance proceeds in reduction of the Indebtedness unless and until the Mortgagee has given Notice to the Mortgagor that the Mortgagee has applied such proceeds to the Indebtedness. Until such Notice is given with respect to the insurance proceeds, then such proceeds, to the extent paid to the Mortgagee and held by it, shall be deemed to be held by the Mortgagee as additional security for the Indebtedness. The Mortgagee shall not be obligated to see to the proper application of insurance money paid over to the Mortgagor. If the Real Estate shall have been sold on foreclosure of this Mortgage, then, as between the Mortgagor and the Mortgagee, the Mortgagee shall have the right to receive all insurance proceeds on account of any Damage, and the Mortgagor shall pay over to the Mortgagee said insurance proceeds as, if and when the Mortgagor receives same, to the extent of (i) any deficiency between (A) the unpaid balance of this Mortgage at the time of such sale and (B) the net proceeds of such sale (after payment of all expenses) actually received by the Mortgagee, with legal interest thereon, whether or not a deficiency judgment on this Mortgage shall have been sought or recovered, and (ii) the attorney's fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such insurance proceeds. All right, title and interest of the Mortgagor in and to all Policies shall inure to the benefit of and pass to the successor-in-interest of the Mortgagor or the purchaser or grantee of the Real Estate and Improvements. If the prior written appraisal of any underwriter is required in connection with the transfer of any Policy to such successor-in-interest, purchaser, or grantee, then the Mortgagor shall obtain such appraisal, and deliver a copy of such appraisal to the Mortgagee, on or before the date of such transfer. [d] The provisions of this Mortgage are only for the benefit of the Mortgagor and the Mortgagee, and no third party shall be a beneficiary of any provision of this Mortgage. Moreover, the Mortgagee shall have no obligation to supervise the disbursement of the proceeds of any Policy (or any Award, as defined below), and the Mortgagee shall have no liability if such proceeds are not applied, in whole or in part, to the restoration of any Casualty, or if the Award is not applied to the restoration of any part of the Mortgaged Property not taken by a Taking (defined below). 2.14 Real Estate Taxes. Subject to Section of this Mortgage, the Mortgagor shall pay all taxes, assessments, water rates, sewer rents and other charges (including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Real Estate, and all special assessments and other assessments for local improvements, except that if any such assessment is payable in installments, then the Mortgagor need only pay, at any given time, the installments which are then due and payable) which are now due and payable, or which are now or hereafter levied or assessed against the Mortgaged Property (or any part thereof or interest therein) (all such taxes, assessments, rates, rents, charges and fees being collectively called the "Assessments") prior to the date upon which any fine, penalty, interest or cost may be added to any such Assessment or imposed by law for the nonpayment of any such Assessment, and, upon the failure of the Mortgagor to pay any Assessment, the Mortgagee may, in its sole discretion, but shall not be obligated to, pay such Assessment (all such payments to be secured by this Mortgage pursuant to Section of this Mortgage), and the Mortgagor shall reimburse the Mortgagee, upon demand by the Mortgagee, for such expenditures. The Mortgagor shall deliver to the Mortgagee (as and when payment is made of each Assessment) receipted bills, cancelled checks and other evidence satisfactory to the Mortgagee evidencing the payment of such Assessment prior to the date upon which any fine, penalty, interest or cost may be added thereto or imposed by law for the nonpayment of such Assessment. 2.15 Reserve Fund. The Mortgagor will, at the option of the Mortgagee, pay to the Mortgagee, on the first day of each calendar month, one hundred five per cent (105%) of one-twelfth of the amount which would be sufficient to pay, during the oneyear period commencing on such first day (such year being called the "Current Year"), the sum of 1) the Assessments, and 2) the premiums on all Policies (the "Insurance Premiums"), to the extent such Assessments and Insurance Premiums are payable, or, at the Mortgagee's option, are estimated by the Mortgagee to be payable, during the Current Year (the total monthly payment to the Mortgagee, pursuant to this sentence, at any given time, on account of the Assessments and the Insurance Premiums, is called the "Monthly Escrow Payments"). In addition to the preceding amounts, the Mortgagor shall also pay to the Mortgagee, on the date of this Mortgage, an amount equal to two Monthly Escrow Payments. The Mortgagee will apply the amounts paid by the Mortgagor to the Mortgagee pursuant to the preceding sentences of this paragraph (such amounts held by the Mortgagee being called the "Reserve Fund") to the payment of Assessments and the Insurance Premiums which are required to be paid by the Mortgagor pursuant to the provisions of this Mortgage. If the Mortgagor shall ever be entitled to a refund of all or any portion of the Reserve Fund, then the Mortgagee may pay such refund to the person shown on the records of the Mortgagee to be the owner of the Mortgaged Property (or any part thereof or interest therein), and may otherwise deal with such owner, even if such owner is not the original Mortgagor specified in this Mortgage. If, at any time, the amount of the Reserve Fund is less than the sum of the two next Monthly Escrow Payments which are due in the then Current Year, then the Mortgagor shall pay to the Mortgagee, upon request, an amount which the Mortgagee shall estimate, in its sole discretion, as sufficient to make up the deficiency. Until expended or applied as above provided, any amounts in the Reserve Fund may be commingled with the general funds of the Mortgagee and shall constitute additional security for the Indebtedness and shall not bear interest. 2.16 Eminent Domain. Notwithstanding any taking by any public or quasi-public authority through eminent domain, change of grade, inverse condemnation, or other similar action (each such taking being called a "Taking"), the Mortgagor shall continue to pay the Indebtedness as provided in the Note and this Mortgage. The Indebtedness shall not be reduced until and to the extent that any award or payment for any Taking (each such award or payment being called the "Award") shall have been actually received and applied by the Mortgagee to the discharge of the Indebtedness. The Mortgagee shall not be deemed to have applied any proceeds of the Award in reduction of the Indebtedness unless and until the Mortgagee has given Notice to the Mortgagor that the Mortgagee has applied such proceeds to the Indebtedness. Until such Notice is given with respect to such proceeds of the Award, then such proceeds, to the extent paid to the Mortgagee and held by it, shall be deemed to be held by the Mortgagee as additional security for the Indebtedness. The Mortgagee may apply the entire amount of any such Award to the discharge of the Indebtedness whether or not then due and payable in such order, priority and proportions as the Mortgagee in its discretion shall deem proper. The Mortgagee shall not be obligated to see to the proper application of any Award paid over to the Mortgagor. If the Mortgaged Property (or any part thereof or interest therein) is sold, through foreclosure or otherwise, prior to the receipt by the Mortgagee of such Award, then the Mortgagee shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive such Award. The Mortgagor shall pay over to the Mortgagee: 1) said Award as, if and when the Mortgagor receives such Award, together with 2) interest on such Award, whether or not a deficiency judgement on this Mortgage shall have been sought or recovered or denied, and 3) the attorney's fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such Award. Notwithstanding the above, if the Award shall exceed the unpaid balance of the Indebtedness, then the Mortgagee shall be entitled to receive a portion of the Award which is sufficient to pay the Indebtedness. In the case of any Taking, the Mortgagor shall be obligated to pay to the Mortgagee interest on the Indebtedness at the interest rate or rates set forth in the Note (collectively the "Note Rate") up to and including the date of actual payment in full of the Indebtedness, provided that this sentence shall apply, in the case of any Taking, only if and to the extent that the Note Rate is not less than the statutory rate of interest payable on the Award actually received by the Mortgagee in connection with such Taking. To the extent that the Note Rate is applicable to the Indebtedness pursuant to the preceding sentence, the Mortgagor (and each assignee or successor in interest of the Mortgagor) shall be responsible to pay to the Mortgagee the difference between: 1) interest on the Indebtedness at the Note Rate, and 2) the amount of interest (on the Award) actually received by the Mortgagee from the condemning authority. Such difference shall be calculated from the date of vesting of title in such Taking to the date of actual payment to the Mortgagee of the entire unpaid balance of the Indebtedness. If the Note Rate is less than the rate of interest that is actually paid on such Award by the governmental unit paying the Award and received by the Mortgagee (the "Award Rate"), then, to the extent the Mortgagee receives interest on an Award, and applies such interest against the interest obligations of the Mortgagor, the applicable interest rate shall be the Award Rate. The Mortgagor shall file and prosecute its claim or claims for each Award in good faith and with due diligence and cause the same to be collected and paid over to the Mortgagee. The Mortgagor hereby irrevocably authorizes and empowers the Mortgagee, in the name of the Mortgagor or otherwise, to collect and receipt for each Award and to file and prosecute such claim or claims. The Mortgagor shall, upon demand of the Mortgagee, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning each Award to the Mortgagee, free and clear of all encumbrances of any kind or nature whatsoever. However, such assignments and other instruments shall not be necessary in order to establish the Mortgagee's rights to any Award. 2.17 Leases and Tenancies. Subject to the terms of this Section , the Mortgagee waives the right to enter the Mortgaged Property for the purpose of collecting the Rents, and grants the Mortgagor the right to collect the Rents and to lease the Mortgaged Property. The Mortgagor shall hold the Rents in trust for use in payment of the Indebtedness, provided, however, that prior to an Event of Default, the Mortgagor may apply the Rents held by the Mortgagor at any given time, first, to all amounts which are due and payable on account of the Indebtedness at such time, second, to all expenses accruing with respect to the Mortgaged Property, third, to the payment of all other liabilities of the Mortgagor, to the extent then due and payable, and then fourth, to the Mortgagor. The right of the Mortgagor to collect the Rents and to lease the Mortgaged Property (or any part thereof or interest therein) may be revoked by the Mortgagee upon any Event of Default under the terms of this Mortgage, the Note or any other document or instrument evidencing, securing, or guaranteeing payment of the Indebtedness (in whole or in part) or any other amount payable under the Note or this Mortgage, or otherwise now or hereafter executed and delivered in connection with the Indebtedness or the Note or this Mortgage (this Mortgage, the Note, and such other documents or instruments being collectively called the "Loan Documents"). Thereafter, the Mortgagee may let the Mortgaged Property (or any part thereof or interest therein) and may retain and apply the Rents toward payment of the Indebtedness in such order, priority and proportions as the Mortgagee, in its discretion, shall deem proper, or toward the operation, maintenance and repair of the Mortgaged Property (or any part thereof or interest therein), and irrespective of whether the Mortgagee shall have commenced a foreclosure of this Mortgage or shall have applied or arranged for the appointment of a receiver. The Mortgagee shall give to the Mortgagor Notice of such revocation of the right to let and collect the Rents within a reasonable time after such revocation. The Mortgagor represents, warrants, and covenants that, on or before the date of this Mortgage, the Mortgagor has not, except as set forth on Schedule C to this Mortgage: 1) made, or suffered to be made, any Lease, or 2) modified any Lease, or 3) cancelled or terminated any Lease, or 4) accepted any prepayment of any Rents for a period of more than one (1) month in advance of the date when such Rents are due and payable, or 5) further assigned the whole or any part of the Rents or any Lease. On and after the date of this Mortgage, the Mortgagor shall not, without the prior written consent of the Mortgagee: 1) make, or suffer to be made, any Lease, or 2) modify any Lease, or 3) cancel or terminate any Lease, or 4) accept any prepayment of any Rents for a period of more than one (1) month in advance of the date when such Rents are due and payable, or 5) further assign the whole or any part of the Rents or any Lease. The Mortgagor shall (i) fulfill or perform each and every provision of the Leases on the part of the Mortgagor to be fulfilled or performed, (ii) promptly send to the Mortgagee copies of each notice of default which the Mortgagor shall send or receive under each Lease, and (iii) enforce, short of termination of any Lease, the performance or observance of the provisions of such Lease by the tenant under such Lease. All Leases of the Mortgaged Property (or any part thereof or interest therein) shall, at the election of the Mortgagee, be subject and subordinate to this Mortgage. The Mortgagor shall from time to time, but not less frequently than once every month, provide to the Mortgagee a complete and detailed leasing status report with respect to the Improvements, which leasing status report is required to be in form and substance satisfactory in all respects to the Mortgagee. In addition to the rights which the Mortgagee may have in this Mortgage, in the event of any default under this Mortgage, the Mortgagee, at its option, may require the Mortgagor to pay monthly in advance to the Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of each part of the Mortgaged Property as may be in possession of the Mortgagor or any of its affiliates. Upon default in any such payment, the Mortgagor will vacate and surrender possession of the Mortgaged Property to the Mortgagee, or to such receiver, and, if the Mortgagor shall fail to vacate and surrender the Mortgaged Property as provided above, then the Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this Section shall be construed as imposing on the Mortgagee any of the obligations of the lessor under the Leases. 2.18 Financial Records and Statements [a] The Mortgagor will keep and maintain, or will cause to be kept and maintained, on a fiscal year basis in accordance with generally accepted accounting principles consistently applied, proper and accurate books, records and accounts reflecting all of the financial affairs of the Mortgagor and all items of income and expense in connection with: 1) the operation of the Mortgaged Property or 2) any services, equipment or furnishings provided in connection with the operation of the Mortgaged Property, whether such income or expense be realized by the Mortgagor or by any other person whatsoever (excepting lessees unrelated to and unaffiliated with the Mortgagor who have leased from the Mortgagor portions of the Mortgaged Property for the purpose of occupying the same). The Mortgagee shall have the right from time to time, upon at least twenty-four (24) hours prior telephonic notice, at all times during normal business hours to examine such books, records and accounts at the office of either the Mortgagor or such other person maintaining such books, records and accounts, and to make copies or extracts of such books, records and accounts as the Mortgagee shall desire. [b] The Mortgagor will furnish the Mortgagee annually, within one hundred twenty (120) days next following the end of each fiscal year of the Mortgagor, with: (i) a complete executed copy of an annual financial statement, on the Mortgagee's standard form of such statement, which has been audited by, prepared by, and certified (as being in accordance with generally accepted accounting principles) by, an independent certified public accountant of recognized standing selected by the Mortgagor and acceptable to the Mortgagee, covering the operation of the Mortgaged Property for such fiscal year and containing a fully itemized statement of profit and loss and of surplus and a balance sheet, and otherwise in form and substance satisfactory to the Mortgagee, and (ii) a complete executed copy of an annual financial statement, on the Mortgagee's standard form of such statement, of the Mortgagor for such fiscal year, prepared by, audited by, and certified (as being in accordance with generally accepted accounting principles) by, an independent certified public accountant of recognized standing selected by the Mortgagor and acceptable to the Mortgagee, and containing a fully itemized statement of profit and loss and of surplus, and a balance sheet, and otherwise in form and substance satisfactory to the Mortgagee. Together with each such financial statement, the Mortgagor shall furnish to the Mortgagee an affidavit signed by the Mortgagor (or in the case of any Mortgagor which is an entity, such entity's duly authorized representative) attesting on the date of such affidavit that: (i) such financial statement is true, complete and accurate and (ii) that there does not exist an event which constitutes, or which upon notice or lapse of time or both would constitute, a default or an Event of Default under this Mortgage or, if such default or Event of Default exists, the nature of such Event of Default and the period of time it has existed (an "Affidavit"). The Mortgagor shall furnish to the Mortgagee, within ten (10) days after request from the Mortgagee, such further detailed financial and other information (including, but not limited to, financial statements), as may be requested by the Mortgagee, with respect to each of the following: the Mortgaged Property, the Mortgagor, each Guarantor, and each affiliate of, and each entity controlled by, the Mortgagor or any Guarantor, as of a date not earlier than that specified by the Mortgagee in such request, together with a Affidavit with respect to such further detailed financial and other information. 2.19 Sale or Mortgage By Mortgagor. Neither the Mortgaged Property (nor any part thereof nor any interest therein), nor any interest in the Mortgagor (whether partnership, stock, equity, beneficial, profit, loss or otherwise), shall in any manner, directly or indirectly, be further encumbered, sold, transferred, assigned or conveyed, or permitted to be further encumbered, sold, transferred, assigned or conveyed, without the prior written consent of the Mortgagee. The above provisions of this Section shall apply to each and every such further encumbrance, sale, transfer, assignment or conveyance, regardless of whether or not the Mortgagee has consented to, or waived by its action or inaction its rights under this Mortgage with respect to, any particular encumbrance, sale, transfer, assignment or conveyance, and irrespective of whether such further encumbrance, sale, transfer, assignment or conveyance is voluntary, by reason of operation of law or is otherwise made. In addition, the Mortgagor shall not, without the Mortgagee's prior written consent, 1) permit the transfer or issuance of any stock or other equity interest in the Mortgagor, 2) merge or consolidate with any other party or entity, 3) liquidate or dissolve itself (or suffer any liquidation or dissolution), or 4) acquire by purchase or otherwise all or substantially all the business or assets of, or any stock or other evidence of beneficial ownership of, any entity. If the Mortgagor is a partnership or other noncorporate entity, the Mortgagor shall not dissolve or terminate or materially amend the terms of its partnership agreement, operating agreement, or other agreement with the holders of equity interests. 2.20 Maintenance Recorded Documents and Repairs; Compliance with Laws and [a] The Mortgagor shall cause the Mortgaged Property to be maintained in good condition and repair and, to the extent of any renovations that are made by the Mortgagor, the same shall be made in compliance with the requirements of all governmental authorities having jurisdiction over the Mortgaged Property. The Mortgagor will not commit or suffer to be committed any waste of the Mortgaged Property (or any part thereof or interest therein). The Improvements and the Tangible Personalty shall not be removed, demolished or materially altered (except for: 1) normal replacement of the Tangible Personalty and 2) renovations contemplated to be made by the Mortgagor with the approval of the Mortgagee and, if required by the Mortgagee, in accordance with plans and specifications which have been approved in writing by the Mortgagee), without the prior written consent of the Mortgagee. Subject to the preceding provisions of this paragraph, the Mortgagor shall, at its expense, promptly repair, replace or rebuild all Damage (including, without limitation, all damage from any Casualty for which insurance was not obtained or obtainable). Subject to the preceding provisions of this paragraph, the Mortgagor shall also, at its expense, restore the Mortgaged Property after each Taking so that the remaining portion of the Mortgaged Prop