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HomeMy WebLinkAboutZ-4923-A Application 5(x) Such Sale is not construed so as to relieve any current Indemnitor of its obligations under any guaranty or indemnity agreement executed in connection with the loan secured hereby for any acts or events occurring or obligations arising or accruing prior to or simultaneously with the closing of such Sale, and each such current indemnitor executes, without any cost or expense to Mortgagee, such documents and agreements as Mortgagee shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement to the date of Sale as aforesaid. Each such current Indemnitor shall be released from and relieved of any of its obligations under any guaranty or indemnity agreement executed in connection with the loan secured hereby for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising or accruing prior to or simultaneously with the closing of such Sale; (xi) The Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer's capacity and good standing, and the due authority of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners of the Buyer. The Buyer and such constituent partners, members or shareholders of Buyer (as the case may be), as Mortgagee shall require, shall be single purpose, "bankruptcy remote" entities, whose formation documents shall be reasonably approved by counsel to Mortgagee. The individual recommended by the Mortgagor and approved by Mortgagee shall serve as the independent director of the Buyer (if the Buyer is a corporation) or the Buyer's corporate, general partner or as independent member or, in Mortgaged's discretion, as manager, of Buyer if the Buyer is a limited liability company. The consent of such independent party shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Buyer; and (xii) Mortgagor delivers to Mortgagee a written statement from the applicable rating agency (the "Rating Agency") to the effect that the Sale will not result in a downgrading, withdrawal or qualification of the respective ratings (an "Adverse Rating Im act") in effect immediately prior to such Sale for any securities issued in connection with a Secondary Market Transaction (as hereinafter defined). In the event the Secondary Market Transaction has not yet occurred, Mortgagee shall, in its sole'discretion, have determined that the Sale would not have resulted in an Adverse Rating Impact had the Secondary Market Transaction theretofore ' occurred. (c) Mortgagor, by its acceptance of this Mortgage and reliance hereof, agrees that notwithstanding the provisions of this Section 1.13 or any similar provision in any other Loan Document: (1) There shall be no restriction on the transfer, pledge, encumbrance or hypothecation of any stock or shares of FURI which on the date hereof owns, indirectly, a majority interest in the Mortgagor, except that FURI shall not merge or consolidate into another entity (i.e. where FURI is not the surviving entity); provided, however, that such merger or consolidation of FURI into another entity shall not be prohibited, constitute a default or result in the payment of any fee to Mortgagee under the Loan Documents so long as: (a) Mortgagee receives 20 days prior written notice of such proposed merger or consolidation, (b) the surviving DOCS NY1:6i3'35.13 8233-775 S32 27 entity executes any and all documents as are reasonably necessary to evidence the assumption of FURI's obligations relative to the loan evidenced by the Note (the "Loan") and delivers such other certificates and opinions (covering such subjects, including nonconsolidation) as may be reasonably required by Mortgagee, (c) the "net worth" of the surviving entity shall be S40 million or more as of the date of the completion of such merger or consolidation, and (d) if, as a result of such merger or consolidation, the manager of the Mortgaged Property changes, the replacement manager is a "Qualified Manager" or such replacement manager is approved by Mortgagee, and (e) the business experience and reputation of the surviving entity shall be at least equal to that of FURI on the date hereof. As used herein, the term "Qualified Manager" means any person or entity that (i) has not less than 5 years experience in managing enclosed regional shopping malls, and (ii) at the time in question manages not less than 5 enclosed regional shopping malls that are similar in type and size to the Mortgaged Property. A Qualified Manager shall be acceptable as manager of the Improvements on the Mortgaged Property for all purposes under the Loan Documents including Section 1.30 of the Mortgage. (2) Park Plaza 1, LLC, a Delaware limited liability company which owns, indirectly, a majority interest in the Mortgagor ("Park Plaza 1, LLC"), shall not incur any indebtedness, Provided, however, that Park Plaza 1, LLC shall not be prohibited from incurring indebtedness (a "Mezzanine Loan"), and its incurrence of a Mezzanine Loan shall not constitute a default or result in payment of any fee to Mortgagee under the Loan Documents so long as: (a) the security granted in connection with such indebtedness consists of a pledge of the membership interests of Park Plaza 2, LLC, a Delaware limited liability company ("Park Plaza 2, LLC"), which owns a majority interest in Mortgagor by Park Plaza 1, LLC and distributions and dividends payable to Park Plaza 1, LLC, and in no event may Park Plaza 3, LLC pledge any of its interest in Mortgagor, (b) the Mortgaged Property has both (i) a debt service coverage ratio on the date the Mezzanine Loan is incurred of a minimum of 1.10:1, calculated as the ratio of (x) net operating income as determined in accordance with the Cash Management Agreement (as defined in Section 1.35 hereof) from the Mortgaged Property for the preceding 12 calendar months, determined in accordance withgenerally accepted accounting principles applied on a consistent basis, by subtracting expenses of the Mortgaged Property for such period (including reasonable reserves for (A) repairs and replacements, and (B) tenant improvement costs associated with lease rollovers, both as reasonably determined by the appraiser selected pursuant to the provisions of subpart (ii) hereinbelow, from revenue from the Mortgaged Property for such period, and otherwise determined in a manner consistent with the manner that net operating income was determined by Mortgagee in connection with its original underwriting of the Loan, and (y) the principal and interest actually paid under the Loan to Mortgagee with respect to such period plus the annual principal and interest payable under the proposed Mezzanine Loan, and (ii) a loan -to -value ratio of 90% of the appraised value of the Mortgaged Property pursuant to a current appraisal that complies with FIRREA and the Uniform Standards of Professional Appraisal Practice, including the Competency Provision, of the Appraisal Institute (in effect at the time), prepared by the same appraiser used by Mortgagee in connection with its original underwriting of the Loan, or if such appraiser is not available, by an independent MAUSREA appraiser selected by Mortgagor from Mortgagee's list of approved appraisers, such appraisal to be reasonably acceptable to Mortgagee, (c) the lender of the Mezzanine Loan executes and delivers an Intercreditor agreement to Mortgagee in substantially the same form as is attached hereto and made a part hereof as Exhibit E (the "Intercreditor Agreement"), (d) such lender qualifies as a "Permitted Institutional Transferee" under such Intercreditor Agreement, (e) the DOCS Nvl :(,7.735.13 8-213-77-5 S3' 28 'Mezzanine Loan is, subordinate in time and in right to the Debt pursuant to the Intercreditor .Agreement, (f) the Lender under the Mezzanine Loan retains no more than 75% of excess cash bow (after payment of operating expenses and debt service on the Debt and the Mezzanine Loan), (g) the Mezzanine Loan is not cross defaulted or cross collateralized with any other properties or loans, and (h) the structure of and documentation for the Mezzanine Loan are reasonably approved by Mortgagee, which approval shall not be unreasonably withheld if (i) said ;documents and structure comply with the provisions of this paragraph 2, and (ii) Mortgagee has received written confirmation from each Rating Agency that the implementation of the structure of and execution and delivery of the documentation (including the terms and conditions thc:-eirl) for the Mezzanine Loan will not result in a qualification, downgrade, or withdrawal of the then - current ratings assigned by the Rating Agency to the securities issued in connection with a Secondary Market Transaction. Mortgagee by its acceptance of this Mortgage and reliance hereon, agrees, upon request of Mortgagor, that Mortgagee shall use reasonable efforts to obtain Agency that the implementation of the structure and written confirmation from each Rahn; execution and delivery of the documentation will not result in a qualification, downgrade, or withdrawal of the then -current ratings assigned by the Rating Agency to the Certificates. Furthermore, the Mezzanine Lender shall, notwithstanding anything to the contrary, have the right to enforce its rights and remedies under its loan documents, including the right to realize upon the collateral for the Mezzanine Loan that is described herein, succeed to the interest of Dark Plaza 1, LLC in and to Park Plaza 2, LLC, and thereafter use, enjoy and exercise all rights and benefits of Park Plaza 1, LLC as sole manager and member of Park Plaza 2, LLC. (3) FURI shall not transfer more than a 49% interest in the regular membership interests of Park Plaza I, LLC, provided, however, that F[J-RI shall not be prohibited from .transferring any amount of the regular membership interests of Park Plaza 1, LLC, if the following conditions are satisfied: (a) Mortgagee receives 20 days prior written notice: of such proposed transfer, and (b) the transferee has a net worth on the date immediately following such transfer of not less than $40 Million; (c) the transferee executes any and all documents as are reasonably necessary to evidence such transferee's assumption of FTJW's obligations under its Indemnity and Guaranty of the Loan and delivers such other certificates and opinions (covering such subjects, including nonconsolidation) as may be reasonably required by Mortgagee, (d) the business experience and reputation of the transferee shall be at least equal to that of FURI on the date hereof, (e) the assumption fee otherwise payable under this Section 1.13 shall apply, (f) if as a result of such transfer, the manager of the Mortgaged Property changes, the replacement manager is a Qualified Manager or is approved by Mortgagee, and (g) Mortgagee shall r.ceive written confirmation from each Rating Agcncy that such transfer will not result in a qualification, downgrade or withdrawal of the then -current ratings assigned by the Rating Agency to the Certificates. FURI shall be released and relieved of and from all obligations and liabilities under the Indemnity and Guaranty that arise from and after the date of transfer, but not prior thereto, if another person or entity that has a "net worth" of S40 Million or more as of the date immediately following such transfer executes any and all documents as are reasonably necessary to evidence the assumption of FUIRI's obligations raider said Indemnity and Guaranty and delivers such other certificates and opinions as may be reasonably required by Mortgagee. .. . (4) Southwest Shopping Co. II, L.L.C., a Delaware limited liability company, may distribute all or any part of its assets to FURI and/or any of FURI's successors and assigns nermitted or contemplated hereunder on or before April 30, 2001. DOCSNY1:03735.13 5233-775 S32 29 Doc# 2000027337 1.14. Pavment of Utilities. Assessments. Charges. Etc. Mortgagor shall pay when due all utility charges which are incurred by Mortgagor or which may become a charge or lien against any portion of the Mortgaged Property for gas, electricity, water and sewer services furnished to the Premises and/or the Improvements and all other assessments or charges of a similar nature, or assessments payable pursuant to any restrictive covenants, whether public or private, affecting the Premises and/or the Improvements or any portion thereof, whether or not such assessments or charges are or may become liens thereon. 1.15. access Privileges and Inspections. Mortgagee and the agents, representatives and employees of Mortgagee shall, subject to the rights of Tenants, have full and free access to the Premises and the Improvements and any other location where books and records concerning the Mortgaged Property are kept at all reasonable times and, except in the event of an emergency, upon not less than 2 days prior notice (which notice may be telephonic) for the purposes of inspecting the Mortgaged Property and of examining, copying and making extracts from the books and records of Mortgagor relating to the Mortgaged Property. Mortgagor shall lend reasonable and customary assistance to all such agents, representatives and employees of Mortgagee. 1.16. Waste. Alteration of Improvements. Mortgagor shall not commit, suffer or permit any waste on the Mortgaged Property nor take any actions that may reasonably invalidate any insurance carried on the Mortgaged Property. Mortgagor shall maintain the Mortgaged Property in good condition and repair. No part of the Improvements may be removed, demolished or materially altered, without the prior written consent of Mortgagee unless promptly replaced with construction of equal or greater utility or value or required in connection with Mortgagor's ongoing leasing activities conducted in accordance with the provisions of Section 1.12 hereof, or unless otherwise required to comply with the Loan Documents. Without the prior written consent of Mortgagee, Mortgagor shall not commence construction of any improvements on the Premises other than improvements required for the maintenance or repair of the Mortgaged Property, or required in connection with Mortgagor's ongoing leasing activities conducted in accordance with the provisions of Section 1.12 hereof, or required to comply with the Loan Documents. 1.17. Zoning. Without the prior written consent of Mortgagee, Mortgagor shall not seek, make, suffer, consent to or acquiesce in any material adverse change in the zoning or conditions of use of the Premises or the Improvements. Mortgagor shall comply with and make all payments required under the provisions of any covenants, conditions or restrictions affecting the Premises or the Improvements. Mortgagor shall comply with all existing and future requirements of all governmental authorities having jurisdiction over the Mortgaged Property. Mortgagor shall keep all licenses, permits, franchises and other approvals necessary for the operation of the Mortgaged Property in full force and effect. Mortgagor shall operate the Mortgaged Property as a retail shopping center for so long as the Debt is outstanding. If, under applicable zoning provisions, the use of all or any part of the Premises or the Improvements is or becomes a nonconforming use, Mortgagor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Mortgagee. Further, without Mortgagee's prior written consent, Mortgagor shall not file or subject any part of the Premises or the Improvements to any declaration of condominium or co-operative or convert any part of the DOCS\ Y 1:67' '715.13 .., 82_33-775 S32 30 Premises or the Improvements to a condominium, co-operative or other form of multiple ownership and governance. 1.18. Financial Statements and Books and Records. Mortgagor shall keep accurate books and records of account of the Mortgaged Property and its own financial affairs sufficient to permit the preparation of financial statements therefrom in accordance with generally accepted accounting principles. Mortgagee and its duly authorized representatives shall have the right to examine, copy and audit Mortgagor's records and books of account at all reasonable times. So long as this Mortgage continues in effect, Mortgagor shall provide to Mortgagee, in addition to any other financial statements required hereunder or under any of the other Loan Documents, the following financial statements and information, all of which must be certified to Morteagee as being true and correct by Mortgagor or the person or entity to which they pertain, as applicable, and, with respect to the financial statements and information set forth in subsection (d) hereof, audited by an independent certified public accountant, be prepared in accordance with generally accepted accounting principles consistently applied, and be in form and substance acceptable to Mortgagee: (a) copies of all federal tax returns, if any, filed by Mortgagor, within thirty (30) days after the date of filing; (b) monthly operating statements for the Mortgaged Property, within thirty (30) days after the end of each of the first (1st) twelve (12) calendar months following the date hereof, (c) quarterly operating statements for the Mortgaged Property, within thirty (30) days after the end of each March, June, September and December commencing with the first (1st) of such months to occur following the first (1st) anniversary of the date hereof; (d) annual balance sheets for the Mortgaged Property and annual financial statements for Mortgagor, each principal or general partner in Mortgagor, and each Indemnitor, within ninety (90) days after the end of each calendar year; and (e) such other information with respect to the Mortgaged Property, Mortgagor, the principals or general partners in Mortgagor, and each Indemnitor, which may be reasonably requested from time to time by Mortgagee, within a reasonable time after the applicable request. If any of the aforementioned materials are not furnished to Mortgagee within the applicable time periods or Mortgagee is reasonably dissatisfied with the contents of any of the foregoing and has notified Mort-agor of its dissatisfaction, in addition to any other rights and remedies of Mortgagee contained herein, Mortgagee shall have the right, but not the obligation, to obtain the same by means of an audit by an independent certified public accountant selected by Mortgagee, in which event Mortgagor agrees to pay, or to reimburse Mortgagee for, all reasonable and customary costs and expenses of such audit and further agrees to provide all necessary information to said accountant and to otherwise cooperate in the making of such audit. 1.19. Further Documentation. DOCS IN" Y' l :073'3 x.13 8231-775 S32 31 (a) Mortgagor shall, on the request of Mortgagee and at the expense of Mortgagor: (a) promptly correct any defect, error or omission which may be discovered in the contents of this Mortgage or in the contents of any of the other Loan Documents; (b) promptly execute, acknowledge, deliver and record or file such further instruments (including, without limitation, further mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements and assignments of rents or leases) and promptly do such further acts as may be reasonably necessary, desirable or proper to carry out more effectively the purposes of this Mortgage and the other Loan Documents and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof and thereof to be covered hereby and thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements or appurtenances to the Mortgaged Property; (c) promptly execute, acknowledge, deliver, procure and record or file any document or instrument (including specifically, without limitation, any financing statement) deemed advisable by Mortgagee to protect, continue or perfect the liens or the security interests hereunder against the rights or interests of third persons; and (d) promptly furnish to Mortgagee, upon Mortgagee's request, a duly acknowledged written estoppel certificate addressed to such party or parties as directed by Mortgagee and in form and substance supplied by Mortgagee, setting forth to the best of its knowledge the principal balance of and date to which interest due under the Note has been paid, stating whether any Default or Event of Default has occurred hereunder, stating whether any offsets or defenses exist against the Debt and containing such other matters as Mortgagee may reasonably require. (b) Mortgagor acknowledges that Mortgagee and its successors and assigns may effectuate a Secondary Market Transaction. Mortgagor shall cooperate in good faith with Mortgagee in effecting any such Secondary Market Transaction provided that same shall impose only immaterial costs upon Mortgagor and shall cooperate in good faith to implement all requirements imposed by any rating agency involved in any Secondary Market Transaction including, without limitation, all structural or other changes to the Debt, and modifications to any documents evidencing or securing the loan; provided, however, that the Mortgagor shall not be required to modify any documents evidencing or securing the Debt which would modify (A) the interest rate payable under the Note, (B) the stated maturity of the Note, (C) the amortization of principal of the Note, (D) any other material economic term of the Debt, or (E) increase any obligations or decrease any rights of Mortgagor under the Loan Documents in a material manner. Mortgagor shall provide such information within Mortgagor's possession or control, and documents relating to Mortgagor, any guarantor or indemnitor, the Mortgaged Property and any tenants of the Improvements as Mortgagee may reasonably request in connection with such Secondary Market Transaction. Mortgagor shall make available to Mortgagee all information concerning its business and operations that Mortgagee may reasonably request. Mortgagee shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third -party advisory firms involved with the Loan Documents or the applicable Secondary Market Transaction. It is understood that the information provided by Mortgagor to Mortgagee may ultimately be incorporated into the offering documents for the Secondary Market Transaction and thus various investors may also see some or all of the information. Mortgagee and all of the aforesaid third -party advisors and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Mortgagor and Mortgagor indemnifies Mortgagee as to any losses, claims, damages or liabilities that arise out of or are based upon any untrue statement or alleged untrue statement of any DOC'SN Y 1:b?_ '• 35.13 8233-771 5 S32 32 material fact contained in such information or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information, or in light of the circumstances under which they were made, not misleading. Mortgagee may publicize the existence of the Debt in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development. For purposes hereof, a "Secondary Market Transaction" shall be (a) any sale of the Mortgage, Note and other Loan Documents to one or more investors as a whole loan; (b) a participation of the Debt to one or more investors, (c) any deposit of the Mortgage, Note and other Loan Documents with a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest -in the assets of such trust or other entity, or (d) any other sale or transfer of the Debt or any interest therein to one or more investors. 1.20. Payment of Costs. Reimbursement to ;Mortgagee. Mortgagor shall pay all costs and expenses reasonably incurred in connection with the closing of the loan evidenced by the Note and secured hereby or otherwise attributable or chargeable to Mortgagor as the owner of the Mortgaged Property, including, without limitation, appraisal fees, recording fees, documentary, stamp, mortgage or intangible taxes, brokerage fees and commissions, title policy premiums and title search fees, uniform commercial code/tax lien/litigation search fees, escrow fees and reasonable attorneys' fees. If Mortgagor defaults in any such payment, which default is not cured within any applicable grace or cure period, Mortgagee may pay the same and Mortgagor shall reimburse Mortgagee on demand for all such costs and expenses incurred or } paid by Mortgagee, together with such interest thereon at the Default Interest Rate from and after the date of Mortgagee's making such payment until reimbursement thereof by Mortgagor. Any such sums disbursed by Mortgagee, together with such interest thereon, shall be additional indebtedness of Mortgagor secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Further, Mortgagor shall promptly notify Mortgagee in writing of any litigation or threatened litigation affecting the Mortgaged Property, or any other demand or claim, which, if enforced, could impair or threaten to impair Mortgagee's security hereunder. Without limiting or waiving any other rights and remedies of Mortgagee hereunder, if Mortgagor fails to perform any of its covenants or agreements contained in this Mortgage or in any of the other Loan Documents and such failure is not cured within any applicable grace or cure period, or if any action or proceeding of any kind (including, but not limited to, any bankruptcy, insolvency, arrangement, reorganization or other debtor relief proceeding) is commenced which affects Mortgagee's interest in the Mortgaged Property or Mortgagee's right to enforce its security, then Mortgagee may, at it option, with or without notice to Mortgagor, make any appearances, disburse any sums and take any actions as may be necessary or desirable to protect or enforce the security of this Mortgage or to remedy the failure of Mortgagor to perform its covenants and agreements (without, however, waiving any default of Mortgagor). Mortgagor agrees to pay on demand all expenses of Mortgagee incurred with respect to the foregoing (including, but not limited to, reasonable fees and disbursements of counsel), together with interest thereon at the Default Interest Rate from and after the date on which Mortgagee incurs such expenses until reimbursement thereof by Mortgagor. Any such expenses so incurred by Mortgagee, together with interest thereon as provided above, shall be additional indebtedness of Mortgagor secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. The necessity for any such actions shall be reasonably determined by Mortgagee and the amounts to be paid shall be determined by Mortgagee in its reasonable DOCSnYI bT-35.13 8333 -775 S32 33 discretion. Mortgagee is hereby empowered to enter and to authorize others to enter upon the Mortgaged Property or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without thereby becoming liable to Mortgagor. Mortgagor hereby acknowledges and agrees that the remedies set forth in this Section 1.20 shall be exercisable by Mortgagee, and any and all payments made or costs or expenses incurred by Mortgagee pursuant to and in accordance with the provisions hereof shall be secured hereby and shall be, without demand, immediately repaid by Mortgagor with interest thereon at the Default } Interest Rate, notwithstanding the fact that such remedies were exercised and such payments made and costs incurred by Mortgagee after the filing by Mortgagor of a voluntary case or the filing against Mortgagor of an involuntary case pursuant to or within the meaning of the Bankruptcy Reform Act of 1978, as amended, Title 11 U.S.C., or after any similar action pursuant to any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable to Mortgagor, Mortgagee, any Indemnitor, the Debt or any of the Loan Documents. Mortgagor hereby indemnifies and holds Mortgagee harmless from and against all loss, cost and expenses with respect to any Event of Default hereof, any liens (i.e., judgments, mechanics' and materialmen's liens, or otherwise), charges and encumbrances filed against the Mortgaged 'I Property, and from any claims and demands for damages or injury, including claims for property damage, personal injury or wrongful death, arising out of or in connection with any accident or fire or other casualty on the Premises or the Improvements or any nuisance made or suffered thereon, except those that are due to Mortgagee's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction, including, without limitation, in any case, reasonable attorneys' fees, costs and expenses as aforesaid, whether at pretrial, trial or appellate level, and such indemnity shall survive payment in full of the Debt. This Section shall not be construed to require Mortgagee to incur any expenses, make any appearances or take any actions. 1.21. Security Interest. This Mortgage is also intended to encumber and create a security interest in, and Mortgagor hereby grants to Mortgagee a security interest in, all sums on deposit with Mortgagee pursuant to the provisions of Section 1.6, Section 1.8, Section 1.34 and Section 1.36 hereof or any other Section hereof or of any other Loan Document and all fixtures, chattels, accounts, equipment, inventory, contract rights, general intangibles and other personal property included within the Mortgaged Property, all renewals, replacements of any of the aforementioned items, or articles in substitution therefor or in addition thereto or the proceeds thereof (said property is hereinafter referred to collectively as the "Collateral"), whether or not the same shall be attached to the Premises or the Improvements in any manner. It is hereby agreed that to the extent permitted by law, all of the foregoing property is to be deemed and held to be a part of and affixed to the Premises and the Improvements. The foregoing security interest shall also cover Mortgagor's leasehold interest in any of the foregoing property which is leased by Mortgagor. Notwithstanding the foregoing, all of the foregoing property shall be owned by Mortgagor and no leasing or installment sales or other financing or title retention agreement in connection therewith shall be permitted without the prior written approval of Mortgagee, except for maintenance equipment for the Improvements and the collateral is the equipment itself. Mortgagor shall, from time to time upon the request of Mortgagee, supply Mortgagee with a current inventory of all of the property in which Mortgagee is granted a security interest hereunder, in such detail as Mortgagee may reasonably require. Mortgagor shall promptly replace all of the Collateral subject to the lien or security interest of this Mortgage when worn or DOC'S \ Y 1:x,73-3;.13 .� 81_3:-775 S32 34 obsolete with Collateral comparable to the worn out or obsolete Collateral when new and will not, without the prior written consent of Mortgagee, remove from the Premises or the Improvements any of the Collateral subject to the lien or security interest of this Mortgage except such as is replaced by an article of equal suitability and value as above provided, owned by Mortgagor free and clear of any lien or security interest except that created by this Mortgage and the other Loan Documents. All of the Collateral shall be kept at the location of the Premises except for financial and accounting records which are kept at principal place of business of Mortgagor or as otherwise required or permitted by the terms of the Loan Documents. Mortgagor shall not use any of the Collateral in violation of any applicable statute, ordinance or insurance policy. 1.22. Security Agreement. This Mortgage constitutes a security agreement between Mortgagor and Mortgagee with respect to the Collateral in which Mortgagee is granted a security interest hereunder, and, cumulative of all other rights and remedies of Mortgagee hereunder, Mortgagee shall have all of the rights and remedies of a secured party under any applicable Uniform Commercial Code. Mortgagor hereby agrees to execute and deliver on demand and hereby irrevocably constitutes and appoints Mortgagee the attorney-in-fact of Mortgagor to execute and deliver and, if appropriate, to file with the appropriate filing officer or office, such security agreements, financing statements, continuation statements or other instruments as Mortgagee may request or require in order to impose, perfect or continue the perfection of the lien or security interest created hereby. To the extent specifically provided herein, Mortgagee shall have the right of possession of all cash, securities, instruments, negotiable instruments, documents, certificates and any other evidences of cash or other property or evidences of rights to cash rather than property, which are now or hereafter a part of the Mortgaged Property, and Mortgagor shall promptly deliver the same to Mortgagee, endorsed to Mortgagee, without further notice from Mortgagee. Mortgagor agrees to furnish Mortgagee with notice of any change in the name, identity, organizational structure, residence, or principal place of business or mailing address of Mortgagor within ten (10) days of the effective date of any such change. Upon the occurrence of any Event of Default, Mortgagee shall have the rights and remedies as prescribed in this Mortgage, or as prescribed by general law, or as prescribed by any applicable Uniform Commercial Code, all at Mortgagee's election. Any disposition of the Collateral may be conducted by an employee or agent of Mortgagee. Any person, including both Mortgagor and Mortgagee, shall be eligible to purchase any part or all of the Collateral at any such disposition. Expenses of retaking, holding, preparing for sale, selling or the like (including, without limitation, Mortgagee's reasonable attorneys' fees and legal expenses), together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Mortgagee shall have the right to enter upon the Premises and the Improvements or any real property where any of the Collateral is located to take possession of, assemble and collect the same or Mortgagor, upon demand of Mortgagee, shall assemble such property and make it available to Mortgagee at the Premises, or at a place which is mutually agreed upon or, if no such place is agreed upon, at a place reasonably designated by Mortgagee to be reasonably convenient to Mortgagee and Mortgagor. If notice is required by law, Mortgagee shall give Mortgagor at least ten (10) days' prior written notice of the time and place of any public sale of such property, or adjournments thereof, or of the time of or after which any private sale or any other intended disposition thereof is to be made, and if such notice is sent to Mortgagor, as the same is provided for the mailing of DOCSn'Y1:67=735.13 .,, 823? -7? -5 s32 35 notices herein, it is hereby deemed that such notice shall be and is reasonable notice to Mortgagor. No such notice is necessary for any such property which is perishable, threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any sale made pursuant to the provisions of this Section shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with a foreclosure sale as provided in Section 3.1(e) hereof upon giving the same notice with respect to the sale of the Mortgaged Property hereunder as is required under said Section 3.1(e). Furthermore, to the extent permitted by law, in conjunction with, in addition to or in substitution for the rights and remedies available to Mortgagee pursuant to any applicable Uniform Commercial Code: (a) In the event of a foreclosure sale, the Mortgaged Property may, at the option of Mortgagee, be sold as a whole; and (b) It shall not be necessary that Mortgagee take possession of the aforementioned Collateral, or any part thereof, prior to the time that any sale pursuant to the provisions of this Section is conducted and it shall not be necessary that said Collateral, or any part thereof, be present at the location of such sale; and (c) Mortgagee may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Mortgagee, including the sending of notices and the conduct of the sale, but in the name and on behalf of Mortgagee. The name and address of Mortgagor (as Debtor under any applicable Uniform Commercial Code) - are: c/o First Union Real Estate Equity and Mortgage Investments 551 Fifth Avenue Suite 1416 New York, New York 10176 The name and address of Mortgagee (as Secured Party under any applicable Uniform Commercial Code) are: First Union National Bank One First Union Center DC6 Charlotte, North Carolina 28288-0166 1.23. Easements and Rights -of -Way. Mortgagor shall not grant any easement or right-of-way with respect to all or any portion of the Premises or the Improvements without the prior written consent of Mortgagee, which consent shall not be unreasonably withheld, provided that the granting of same does not have a material adverse effect on the utility or value of the Mortgaged Property. The purchaser at any foreclosure sale hereunder may, at its discretion, disaffirm any easement or right-of-way granted in violation of any of the provisions of this Mortgage and may take immediate possession of the Mortgaged Property free from, and despite the terms of, such grant of easement or right-of-way. If Mortgagee consents to the grant of an easement or right-of-way, Mortgagee agrees to grant such consent without charge to Mortgagor L)OC'SNYI:67', 35.13 8233-77= S32 36 other than expenses, including, without limitation, reasonable attorneys' fees, incurred by Mortgagee in the review of Mortgagor's request and in the preparation of documents effecting the subordination. 1.24. _Compliance with Laws. Mortgagor shall at all times comply with all statutes, ordinances, regulations and other governmental or quasi -governmental requirements and private covenants now or hereafter relating to the ownership, construction, use or operation of the Mortgaged Property, including, but not limited to, those concerning employment and compensation of persons engaged in operation and maintenance of the Mortgaged Property and any environmental or ecological requirements, even if such compliance shall require structural changes to the Mortgaged Property; provided, however, that, Mortgagor may, upon providing Mortgagee with security reasonably satisfactory to Mortgagee, proceed diligently and in good faith to contest the validity or applicability of any such statute, ordinance, regulation or requirement so long as during such contest the Mortgaged Property shall not be subject to any lien, charge, fine or other liability and shall not be in danger of being forfeited, lost or closed. Mortgagor shall not use or occupy, or allow the use or occupancy of, the Mortgaged Property in any manner which violates any Lease of or any other agreement (other than service contracts) applicable to the Mortgaged Property or any applicable law, rule, regulation or order or which constitutes a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. 1.25. ,additional Taxes. In the event of the enactment after the date hereof of any law of the state in which the Mortgaged Property is located or of any other governmental entity } deducting from the value of the Mortgaged Property for the purpose of taxing any lien or security interest thereon, or imposing upon Mortgagee the payment of the whole or any part of the taxes or assessments or charges or liens herein required to be paid by Mortgagor, or changing in any way the laws relating to the taxation of mortgages or security agreements or debts secured by mortgages or security agreements or the interest of the beneficiary, mortgagee or secured party in ' the property covered thereby, or the manner of collection of such taxes, so as to adversely affect this Mortgage or the Debt or Mortgagee, then, and in any such event, Mortgagor, upon demand by Mortgagee, shall pay such taxes, assessments, charges or liens, or reimburse Mortgagee therefor;rop vided, however, that if in the opinion of counsel for Mortgagee (a) it might be unlawful to require Mortgagor to make such payment, or (b) the making of such payment might result in the imposition of interest beyond the maximum amount permitted by law, then and in either such event, Mortgagee may elect, by notice in writing given to Mortgagor, to declare all of the Debt to be and become due and payable in full thirty (30) days from the giving of such notice, and, in connection with the payment of such Debt, no prepayment premium or fee shall be due and Mortgagee shall be deemed to have waived the benefit of Section 1.04 of the Note relative thereto unless, at the time of such payment, an Event of Default or a Default shall have occurred, which Default or Event of Default is unrelated to the provisions of this Section 1.25, in which event any applicable prepayment premium or fee in accordance with the terms of the Note shall be due and payable. 1.26. Secured Indebtedness. It is understood and agreed that this Mortgage shall secure payment of not only the indebtedness evidenced by the Note but also any and all substitutions, replacements, renewals and extensions of the Note, any and all indebtedness and obligations arising pursuant to the terns hereof and any and all indebtedness and obligations DOCSNY1:671735.13 1J 8233-775 S32 37 arising pursuant to the terms of any of the other Loan Documents, all of which indebtedness is equally secured with and has the same priority as any amounts advanced as of the date hereof. It is agreed that any future advances made by Mortgagee to or for the benefit of Mortgagor from time to time under this Mortgage or the other Loan Documents and whether or not such advances are obligatory or are made at the option of Mortgagee, or otherwise, made for any purpose, within twenty (20) years from the date hereof. and all interest accruing thereon, shall be equally secured by this Mortgage and shall have the same priority as all amounts, if any, advanced as of the date hereof and shall be subject to all of the terms and provisions of this Mortgage. 1.27. 11ortgaRor's NVaivers. To the full extent permitted by law, Mortgagor agrees that Mortgagor shall not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, moratorium or extension, or any law now or hereafter in force providing for the reinstatement of the Debt prior to any sale of the Mortgaged Property to be made pursuant to any provisions contained herein or prior to the entering of any decree, judgment or order of any court of competent jurisdiction, or any right under any statute to redeem all or any part of the Mortgaged Property so sold. Mortgagor, for Mortgagor and Mortgagor's successors and assigns, and for any and all persons ever claiming any interest in the Mortgaged Property, to the full extent permitted by law, hereby knowingly, intentionally and voluntarily, with and upon the advice of counsel: (a) waives, releases, relinquishes and forever forgoes all rights of valuation, appraisement, stay of execution, reinstatement and notice of election or intention to mature or declare due the Debt (except such notices as are specifically provided for herein); (b) waives, releases, relinquishes and forever forgoes all right to a marshaling of the assets of Mortgagor, including the Mortgaged Property, to a sale in the inverse order of alienation, or to direct the order in which any of the Mortgaged Property shall be sold in the event of foreclosure of the liens and security interests hereby created and agrees that any court having jurisdiction to foreclose such liens and security interests may order the Mortgaged Property sold as an entirety; and (c) waives, releases, relinquishes and forever forgoes all rights and periods of redemption provided under applicable law, including, but not limited to, all rights of redemption confined by the Act passed by the General Assembly of Arkansas on May 8, 1899, and acts amendatory thereof. To the full extent permitted by law, Mortgagor shall not have or assert any right under any statute or rule of law pertaining to the exemption of homestead or other exemption under any federal, state or local law now or hereafter in effect, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right of Mortgagee under the terms of this Mortgage to a sale of the Mortgaged Property, for the collection of the Debt without any prior or different resort for collection, or the right of Mortgagee under the terms of this Mortgage to the payment of the Debt out of the proceeds of sale of the Mortgaged Property in preference to every other claimant whatever. Furthermore, Mortgagor hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel, waives, releases, relinquishes and forever forgoes all present and future statutes of limitations as a defense to any action to enforce the provisions of this Mortgage or to collect any of the Debt to the fullest extent permitted by law. Mortgagor covenants and agrees that upon the commencement of a voluntary or involuntary bankruptcy proceeding by or against Mortgagor, Mortgagor shall not seek a supplemental stay or otherwise shall not seek pursuant to 11 U.S.C. §105 or any other provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law, or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of Mortgagee to enforce any DOCS nwi:67'73s.1 823-7775 s;z 38 Is rights of Mortgagee against any guarantor or indemnitor of the Debt or any other party liable with respect thereto by virtue of any indemnity, guaranty or otherwise. 1.28. SI✓BIMISSION TO JURISDICTIOIN' Nl AIVE,R OF.IURI' !-RIAL. (a) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PREMISES IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE NOTE, THIS MORTGAGE OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN THE STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY IN WHICH THE PREMISES IS LOCATED, (iii) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING rnT ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF MORTGAGEE TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). MORTGAGOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE MORTGAGOR AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 4.5 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW). (b) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT OR ANY CONDUCT, ACT OR OMISSION OF MORTGAGEE OR MORTGAGOR, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH MORTGAGEE OR MORTGAGOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. 1.29. Attornev-in-Fact Provisions. With respect to any provision of this Mortgage or any other Loan Document whereby Mortgagor grants to Mortgagee a power-of-attorney, provided no Default or Event of Default has occurred under this Mortgage, Mortgagee shall first D Mortgagor written notice at least three (3) days prior to acting under such power, which notice shall demand that Mortgagor first take the proposed action within such period and advising Mortgagor that if it fails to do so, Mortgagee will so act under the power; provided, however, that, in the event that a Default or an Event of Default has occurred, or if necessary to prevent imminent death, serious bodily injury, material damage, loss, forfeiture or diminution in value to the Mortgaged Property or any surrounding property or to prevent any material adverse DOCSNw1:673735.13 82331-775 s32 39 Doc# 2000027337 affect on Mortgagee's interest in the Mortgaged Property, Mortgagee may act immediately and without first giving such notice. In such event, Mortgagee will give Mortgagor notice of such action as soon thereafter as reasonably practical. 1.30. !Nlanaoement. The management of the Mortgaged Property shall be by either: (a) Mortgagor or an entity affiliated with Mortgagor approved by Mortgagee for so long as Mortgagor or said affiliated entity is managing the Mortgaged Property in a first class manner; (b) a professional property management company approved by Mortgagee; or (c) a Qualified Manager. Such management by an affiliated entity or a professional property management company shall be pursuant to a written agreement approved by Mortgagee. In no event shall any manager be removed or replaced or the terms of any management agreement be modified or amended, without the prior written consent of Mortgagee which consent, in all cases, shall not be unreasonably withheld so long as such manager is replaced with a Qualified Manager and such replacement manager executes Mortgagee's form of Consent and Agreement of Manager and with respect to any amendments, so long as (x) the management fee thereunder is no greater than 4% of gross revenue of the Mortgaged Property, (y) such Management Agreement is terminable by Mortgagee upon 30 days prior written notice to the manager, and (z) the Management Agreement is subject and subordinate to the terms of this Mortgage. After an Event of Default or a default under any management contract then in effect, which default is not cured within any applicable grace or cure period, Mortgagee shall have the right to terminate, or to direct Mortgagor to terminate, such management contract upon thirty (30) days' notice and to retain, or to direct Mortgagor to retain, a new management agent that either qualifies as a Qualified Manager, oris reasonably approved by Mortgagee. All Rents and Profits generated by or derived from the Mortgaged Property shall first be utilized solely for current expenses directly attributable to the ownership and operation of the Mortgaged Property (including management fees and leasing costs and commissions), including, without limitation, current expenses relating to Mortgagor's liabilities and obligations with respect to this Mortgage and the other Loan Documents, and none of the Rents and Profits generated by or derived from the Mortgaged Property shall be diverted by Mortgagor and utilized for any other purposes unless all such current expenses attributable to the ownership and operation of the Mortgaged Property (including management fees and leasing costs and commissions) have been fully paid and satisfied. 1.31. Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof: (i) except as disclosed in any environmental site assessment report prepared by IVI Environmental Inc. and dated March 3, 2000 (the "Environmental Report"), to the best of Mortgagor's knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to the environment (collectively, "Environment Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seg.), the Emergency Planning and Community -Right -to -Know Act (42 DOCSN 1:07' 71;.13 823'-775 s32 40 U.S.C. §11001 et seg), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seg.), regulations promulgated pursuant to said laws, all as amended from time to time or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) except as otherwise disclosed in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, asbestos or asbestos -containing materials, lead based paint, polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, radon or raw materials which include hazardous materials) or any other substances or materials, which are regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws; (iii) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) except as described in the Environmental Report, there is no pending, nor, to Mortgagor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; except as otherwise disclosed in the Environmental Report there are no underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property that do not comply with Environmental Laws; (v) Mortgagor has received no notice of, and to the best of Mortgagor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; (vi) Mortgagor has received no notice of and, to the best of Mortgagor's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vii) radon is not present at the Mortgaged Property in excess or in violation of Environmental Laws that require disclosure to any tenant or occupant of or invitee to the Mortgaged Property or to any governmental agency or the general public. (b) Except as otherwise disclosed in the Environmental Report, Mortgagor has not received nor to the best of Mortgagor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and (c) Except as otherwise disclosed in the Environmental Report, to the best of Mortgagor's knowledge, information and belief, neither the Mortgaged Property, nor any property to which Mortgagor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Mortgagor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on Dorsnv1:6-7 735.13 533_ -77-5 532 41 CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Mortgagor shall comply with all applicable Environmental Laws. Mortgagor shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances (except those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and except in compliance with all Environmental Laws) and in compliance with all Environmental Laws. Mortgagor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Mortgage, Mortgagor shall not install in the Improvements or permit to be .installed in the Improvements any asbestos or asbestos -containing materials. (e) Mortgagor shall promptly notify Mortgagee if Mortgagor shall become aware of (i) the existence of any Hazardous Substances on the Mortgaged Property other than those occurring in the ordinary course of Mortgagor's business and which do not violate Environmental Laws, (ii) any direct or indirect violation of any Environmental Laws, (iii) any lien, action or notice affecting the Mortgaged Property or Mortgagor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Mortgagor or the Mortgaged Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Mortgage incorrect in any material respect if made at the time of such discovery. Immediately upon receipt of same, Mortgagor, shall deliver to Mortgagee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Mortgaged Property or to Mortgagor. Mortgagor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws. Without limiting the foregoing, Mortgagor shall, promptly and regardless of the source of the contamination or threat to the environment, at its own expense, take all actions as shall be necessary or prudent, to bring any and all portions of the Mortgaged Property into compliance with Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner reasonably satisfactory to Mortgagee) and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Mortgaged Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Mortgaged Property or other affected property to be brought into conformance with Environmental Laws and any and all costs and expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Mortgagor hereby grants to Mortgagee and its agents and employees access DOCS N t' l :c,7_ 715.13 8233-775 s32 42 -\ subject to the rights of any Tenants to the Mortgaged Property and a license to remove any items deemed by Mortgagee to be in violation of Environmental Laws and to do all things Mortgagee shall deem necessary to bring the Mortgaged Property into conformance with Environmental Laws. (f) Mortgagor covenants and agrees, at Mortgagor's sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever -t (including, without limitation, reasonable attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Mortgaged Property, and arising directly or indirectly from or out of: (i.) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances or radon on, in, under or affecting all or any portion of the Mortgaged Property or that have migrated from the Mortgaged Property to any surrounding areas, regardless of whether or not caused by or within the control of Mortgagor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Mortgaged Property, originating from the Mortgaged Property, or otherwise associated with Mortgagor or any operations conducted on the Mortgaged Property at any time; (iv) the failure by Mortgagor to comply fully with the terms and conditions of this Section 1.31; (v) the breach of any representation or warranty contained in this Section 1.31; (vi) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, investigation, containment, removal and/or remediation of any and all Hazardous Substances from all or any portion of the Mortgaged Property or any surrounding areas (that originate from the Mortgaged Property or is otherwise caused by Mortgagor), the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Mortgaged Property or any surrounding areas (that originate from the Mortgaged Property or is otherwise caused by Mortgagor) to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with Environmental Laws in connection with all or any portion of the Mortgaged Property or any surrounding areas. The indemnity set forth in this Section 1.31 shall also include any diminution in the value of the security afforded by the Mortgaged Property or any future reduction in the sales price of the Mortgaged Property by reason of any matter set forth in this Section 1.31. The foregoing indemnity shall specifically not include any such costs relating to Hazardous Substances which are initially placed on, in or under the Mortgaged Property after foreclosure or other taking of title to the Mortgaged Property by Mortgagee or its successor or assigns or agents, employees and contractors. Mortgagee's rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Mortgagee under this Mortgage, the Note and the other Loan Documents. DOCSNY"1:673735.13 s233-775 S32 43 (g) Upon Mortgagee's request, at any time after the occurrence of an Event of Default or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on or from the Mortgaged Property in violation of Environmental Laws, or that the Mortgaged Property may be in violation of the Environmental Laws, Mortgagor shall perform or cause to be performed, at Mortgagor's sole cost and expense and in scope, form and substance reasonably satisfactory to Mortgagee, an inspection or audit of the Mortgaged Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Mortgaged Property, the compliance or non-compliance status of the Mortgaged Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Mortgaged Property prepared by an engineering or consulting firm reasonably approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint ("Lead Based Paint") in violation of the Environmental Laws on the Mortgaged Property. If Mortgagor fails to provide reports of such inspection or audit within forty-five (45) days after such request, Mortgagee may order the same, and Mortgagor hereby grants to Mortgagee and its employees and agents access to the Mortgaged Property subject to the rights of any Tenant thereat and an irrevocable license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith by and among Mortgagor, FURI and Mortgagee (the "Environmental Indemnity Agreement"). The provisions of this Mortgage and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Mortgagee. (i) Mortgagor covenants and agrees to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the "Maintenance Program") designed by an environmental consultant, satisfactory to Mortgagee, with respect to asbestos containing materials ("ACM's"), consistent with "Guidelines for Controlling Asbestos -Containing Materials in Buildings" (USEPA, 1985) and other relevant guidelines, and such Maintenance Program will hereafter continuously remain in effect until the Debt secured hereby is repaid in full. In furtherance of the foregoing, Mortgagor shall inspect and maintain all ACM's on a regular basis and ensure that all ACM's shall be maintained in a condition that prevents exposure of residents to ACM's at all times. Without limiting the generality of the preceding sentence, Mortgagee may require (i) periodic notices or reports to Mortgagee in form, substance and at such intervals as Mortgagee may specify, (ii) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (iii) at Mortgagor's sole expense, supplemental examination of the Mortgaged Property by consultants specified by Mortgagee, and (iv) variation of the operations and maintenance program in response to the reports provided by any such consultants. 0) If, at any time hereafter, Lead Based Paint is suspected of being present on the Mortgaged Property, Mortgagor agrees, at its sole cost and expense and within twenty (20) DOC'SN Y1:67' 1 35.13 5233-7?; S32 44 days thereafter, to cause to be prepared an assessment report describing the location and condition of the Lead Based Paint (the "Lead Based Paint Report") prepared by an expert, and in form, scope and substance, acceptable to Mortgagee. (k) Mortgagor agrees that if it has been, or if at any time hereafter it is, determined that the Mortgaged Property contains Lead Based Paint, on or before thirty (30) days following such determination, if such determination is hereafter made, as applicable, Mortgagor shall, at its sole cost and expense, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the Lead Based Paint on the Mortgaged Property, which plan shall be prepared by an expert, and be in form, scope and substance, reasonably acceptable to Mortgagee. 1.32. Indemnification. Subrogation. (a) Mortgagor shall indemnify, defend and hold Mortgagee harmless against: (i) any and all claims for brokerage, leasing, finders or similar fees which may be made relating to the Mortgaged Property or the Debt, and (ii) any and all liability, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses (including Mortgagee's reasonable attorneys' fees) of whatever kind or nature which may be asserted against, imposed on or incurred by Mortgagee in connection with the Debt, this Mortgage, the Mortgaged Property, or any part thereof, or the exercise by Mortgagee of any rights or remedies granted to it under this Mortgage; provided, however, that nothing herein shall be construed to obligate Mortgagor to indemnify, defend and hold harmless Mortgagee from and against any and all liabilities, obligations, losses, damages, penalties, fines, claims, actions, suits, costs and expenses asserted against, imposed on or incurred by Mortgagee by reason of Mortgagee's or its agent's, employee's or contractor's willful misconduct or gross negligence. (b) If Mortgagee is made a party defendant to any litigation or any claim is 11) threatened or brought against Mortgagee concerning the Debt, this Mortgage, the Mortgaged Property, or any part thereof, or any interest therein, or the construction, maintenance, operation or occupancy or use thereof, then Mortgagor shall indemnify, defend and hold Mortgagee harmless from and against all liability by reason of said litigation or claims, including reasonable attorneys' fees and expenses incurred by Mortgagee in any such litigation or claim, whether or not any such litigation or claim is prosecuted to judgmentroP vided, however, that nothing herein shall be construed to obligate Mortgagor to indemnify, defend and hold harmless Mortgagee from and against any and all liabilities, obligations, losses, damages, penalties, fines, claims, actions, suits, costs and expenses asserted against, imposed on or incurred by Mortgagee by reason of Mortgagee's or its agent's, employee's or contractor's willful misconduct or gross negligence. If Mortgagee commences an action against Mortgagor to enforce any of the terms hereof or to prosecute any breach by Mortgagor of any of the terms hereof or to recover any sum secured hereby, Mortgagor shall pay to Mortgagee its reasonable attorneys' fees and expenses if Mortgagee prevails in such litigation or proceeding. The right to such attorneys' fees and expenses shall be deemed to have accrued on the commencement of such action, and shall be enforceable whether or not such action is prosecuted to judgment if Mortgagee prevails in such litigation or proceeding. If Mortgagor breaches any term of this Mortgage, Mortgagee may engage the services of an attorney or attorneys to protect its rights hereunder, and in the event of UUC'SNY'1:6?_735.13 �; 5233-7'5 S32 45 such engagement following anv breach by Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys' fees and expenses incurred by Mortgage, whether or not an action is actually commenced against Mortgagor by reason of such breach. All references to "attomevs" in this Subsection and elsewhere in this Mortgaae shall include, without limitation, anv attorney or law firm engaged by Mortgagee and Mortgagee's in-house counsel, and all references to "fees and expenses" in this Subsection and elsewhere in this Mortgage shall include, without limitation, any fees of such attorney or law firm, any appellate counsel fees, if applicable, and any allocable charges and allocable costs of Mortgagee's in-house counsel. (c) A waiverof subrogation shall be obtained by Mortgagor from its insurance carrier and, consequently, Mortgagor waives any and all right to claim or recover against Mortgagee, its officers, employees, agents and representatives, for loss of or damage to Mortgagor, the Mortgaged Property, Mortgagor's property or the property of others under Mortgagor's control from any cause insured against or required to be insured against by the provisions of this Mortgage. 1.33. Covenants with Respect to Indebtedness. Operations. Fundamental Changes of llortFagor. A. Mortgagor hereby represents, warrants and covenants as of the date hereof and until such time as the Debt is paid in full, that Mortgagor: (a) will not, nor will any partner, limited or general, member or shareholder thereof, as applicable, amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, operating agreement, articles of organization, or other formation agreement or document, as applicable, in any material term or manner, or in a manner which adversely affects Mortgagor's existence as a single purpose entity; (b) will not liquidate or dissolve (or suffer any liquidation or dissolution), or enter into any transaction of merger or consolidation, or 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; (c) has not and will not guarantee, pledge its assets for the benefit of, or otherwise become liable on or in connection with, any obligation of any other person or entity; (d) does not own and will not own any asset other than'(i) the Mortgaged Property and additions thereto contemplated or permitted by the Loan Documents, and (ii) incidental personal property necessary for the operation of the Mortgaged Property; (e) is not engaged and will not engage, either directly or indirectly, in any business other than the ownership, management, leasing and operation of the Mortgaged Property; (f) will not enter into any contract or agreement with any general partner, y principal, affiliate or member of Mortgagor, as applicable, or any affiliate of any general partner, principal or member of Mortgagor, except upon terms and conditions that are substantially uocsNYH,-373�.i3 9233-775 932 46 similar to those that would be available on an arms -length basis with third parties other than an affiliate; (g) except as permitted by Section 1.13 of this Mortgage, has not incurred and will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Debt, and (ii) trade payables or accrued expenses (not exceeding five (5%) percent in the aggregate of the original principal amount of the Note) incurred in the ordinary course of business of owning and operating the Mortgaged Property (provided, however, that all such sums are not evidenced by a promissory note and shall be paid in full promptly by Mortgagor, but in no event later than sixty (60) days of the date incurred), and except as permitted by this Mortgage, no other debt will be secured (senior, subordinate or pari passu) by the Mortgaged Property; (h) has not made and will not make any loans or advances to any third party (including any affiliate) other than normal distributions and dividends; (i) is and will be solvent and pay its debts from its assets (including contributions to its capital) as the same shall become due; (j) has done or shall use commercially reasonable efforts to cause to be done and will do all things necessary to preserve its existence, and will observe all formalities applicable to it; (k) will conduct and operate its business in its own name and as presently conducted and operated; (1) will maintain financial statements, books and records and bank accounts separate from those of its affiliates, including, xvithout limitation, its general partners or members, as applicable; (m) will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including, without limitation, any affiliate, general partner, or member, as applicable, or any affiliate of any general partner or member of Mortgagor, as applicable); (n) will file its own tax returns, if required by law, (o) will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (p) will establish and maintain an office through which its business will be conducted separate and apart from those of its affiliates and shall allocate fairly and reasonably any overhead and expense for shared office space; (q) will not commingle the funds and other assets of Mortgagor with those of any general partner, member, affiliate, principal or any other person except as required or permitted by the Loan Documents; DOCSN Y 1 x, 7 3-3;.13 ,� 8233-77 5 S32 47 (r) has and will maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or any other person except as required or permitted by the Loan Documents; (s) does not and will not hold itself out to be responsible for the debts or oblW,ations of any other person; (t) will pay any liabilities out of its own funds (including contributions to its capital), including salaries of its employees, not funds of any affiliate; (u) will use stationery, invoices, and checks separate from its affiliates; (v) will not do any act which would make it impossible to carry on the ordinary business of Mortgagor; (w) will not possess the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property for other than a business or company purpose; (x) will not sell, encumber or otherwise dispose of all or substantially all of the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property, except as required or permitted by the Loan Documents; (y) will not hold title to Mortgagor's assets other than in Mortgagor's name; and (z) will not, without the affirmative consent of the general manager of the Mortgagor (including the unanimous approval of the board of managers (including the Independent Party as such term is defined below) of the general manager of Mortgagor), institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Mortgagor or a substantial part of Mortgagor's property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any action in furtherance of any such action. B. (a) Mortgagor's manager, Park Plaza 3, LLC, a Delaware limited liability company (the "SPC Entity") shall be a limited liability company and the SPC Entity will at all times comply, and will cause Mortgagor to comply, with each of the representations, warranties, and covenants contained in this Paragraph 1.33 as if such representation, warranty or covenant was made directly by the SPC Entity; (b) SPC Entity shall at all times cause there to be at least one (1) duly appointed member of the board of managers of the SPC Entity who is reasonably satisfactory to Mortgagee (an "Independent Party") who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five years (i) a shareholder of, or an officer, director, attorney, counsel, partner or employee of, Mortgagor or any of its shareholders, subsidiaries or affiliates, (ii) a customer of, or supplier to, Mortgagor or any of its shareholders, DOC'SNY 1:67?735.13 8233-7-15 S32 48 subsidiaries or affiliates, (iii) a person or other entity controlling or under common control with any such shareholder, partner, supplier or customer of Mortgagor or any of its shareholders, subsidiaries or affiliates, or (iv) a member of the immediate family of any such shareholder, officer, director, partner, employee, supplier or customer of anv other director of Mortgagor. As used herein, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise; (c) Mortgagor shall not cause or permit the board of managers of the SPC Entity to take any action which, under the terms of its certificate of formation, operating agreement or any voting trust agreement with respect to any membership rights of the SPC Entity, requires a vote of the board of managers or member(s) (as the case may be) of the SPC Entity, unless, at the time of such action, there shall be at least one Independent Party; and (d) Mortgagor shall conduct its business and shall cause each Covered Party (as hereinafter defined) to conduct its business so that the assumptions made ,N,ith respect to each party (each a "Covered Party") addressed in that certain opinion letter dated the date hereof (the "Insolvency Opinion") delivered by Arter & Hadden, LLP in connection with the loan secured hereby shall be true and correct in all respects. 1.34. Repair and Remediation Reserve. Prior to the execution of this Mortgage, Mortgagee has caused the Mortgaged Property to be inspected and such inspection has revealed that the Mortgaged Property is in need of certain maintenance, repairs and/or remedial or corrective work. Contemporaneously with the execution hereof. Mortgagor has established with the Mortgagee a reserve in the amount of 536,775.00 (the "Repair and Remediation Reserve") by depositing such amount with Mortgagee. Mortgagor shall cause each of the items described in Exhibit C attached hereto and made a part hereof and as more particularly described in that certain Engineering Report (the "Engineering, Report") entitled Property Condition Report, dated March 21, 2000 and prepared by Inspection & Valuation International (the "Deferred Maintenance") to be completed, performed, remediated and corrected to the reasonable satisfaction of Mortgagee and as necessary to bring the Mortgaged Property into compliance with all applicable laws, ordinances, rules and regulations on or before the expiration of six (6) months after the effective date hereof, as such time period may be extended by Mortgagee in its sole discretion. So long as no Event of Default has occurred, all sums in the Repair and Remediation Reserve shall be held by Mortgagee in the Repair and Remediation Reserve to pay the costs and expenses of completing the Deferred Maintenance. So long as no Event of Default has occurred, Mortgagee shall, to the extent funds are available for such purpose in the Repair and Remediation Reserve, disburse to Mortgagor the amount paid and incurred by Mortgagor in completing, performing, remediating or correcting the Deferred Maintenance upon (a) the receipt by Mortgagee of a written request from Mortgagor for disbursement from the Repair and Remediation Reserve and a certification by Mortgagor in the form annexed hereto as Exhibit B, (b) delivery to Mortgagee of paid invoices, receipts or other evidence reasonably satisfactory to Mortgagee verifying the costs of the Deferred Maintenance to be reimbursed, (c) delivery to Mortgagee of a certification from an inspecting architect, engineer or other consultant reasonably acceptable to Mortgagee describing the completed work, verifying the completion of the work and the value of the completed work and, if applicable, certifying that the Mortgaged Property is, as a result of such work, in compliance with all applicable laws, ordinances, rules and regulations ixx•snN'i :c,,_ 735.1 3 „3 s-;;_;,; s32 49 Doc# 2000027337 relating to the Deferred Maintenance so performed, (d) delivery to Mortgagee of affidavits, lien waivers or other evidence reasonably satisfactory to Mortgagee showing that all materialmen, laborers, subcontractors and any other parties furnishing or have furnished materials or labor to the Mortgaged Property have been paid all amounts due for such labor and materials furnished to the Mortgaged Property, and (e) the receipt by Mortgagee of an administrative fee in the amount of S150.00. Mortgagee shall not be required to make advances from the Repair and Remediation Reserve more frequently than once in any ninety (90) day period. In making any payment from the Repair and Remediation Reserve, Mortgagee shall be entitled to rely on such request from Mortgagor without any inquiry into the accuracy, validity or contestability of any such amount. No interest on the funds contained in the Repair and Remediation Reserve shall be paid by Mortgagee to Mortgagor. Mortgagor hereby grants to Mortgagee a power-of-attorney, coupled with an interest, to cause the Deferred Maintenance to be completed, performed, remediated and corrected to the reasonable satisfaction of Mortgagee upon Mortgagor's failure to do so in accordance with the terms and conditions of this Section 1.34, and to apply the amounts on deposit in the Repair and Remediation Reserve to the costs associated therewith, all as Mortgagee may reasonably determine but without obligation to do so. 1.35. Cash A2reernent. On or before the date hereof Mortgagor covenants and agrees to enter into one or more servicing account agreements, lockbox servicing agreements and/or cash management agreements acceptable to Mortgagee between Mortgagor, the manager of the Mortgaged Property, Mortgagee and, as applicable, one or more certain financial institutions (together with any modification, amendment, substitution or replacement y thereof, hereinafter collectively referred to as the "Cash Management Agreement"). During any Sweep Period (as defined in the Cash Management Agreement), all Rents and Profits shall be applied as set forth in the Cash Management Agreement and the escrows and reserves required hereunder shall be funded as provided therein. Mortgagor shall pay all costs and expenses of the servicer and any bank as required under the Cash Management Agreement. Upon the occurrence of an Event of Default, Mortgagee may apply any sums then held pursuant to the Cash Management Agreement to the payment of the Debt in any order in its sole discretion. Until expended or applied, amounts held pursuant to the Cash Management Agreement shall constitute additional security for the Debt. 1.36. Leasing Reserve Contemporaneously herewith Mortgagor is depositing $300,000.00 to be held in escrow as additional security for the indebtedness secured hereby and to be used for tenant improvements and up -front leasing commissions ("Leasing Costs") to retain or replace the former tenant at the Property known as United Artists (the "Leasing Reserve"). So long as no Event of Default has occurred, sums in the Leasing Reserve shall be held by Mortgagee to pay Leasing Costs upon Mortgagee's receipt of a lease for the entire United Artists' space from a tenant (or multiple tenants acceptable to Mortgagee under leases acceptable to Mortgagee) acceptable to Mortgagee in form and substance satisfactory to Mortgagee, containing terms, including financial terms and other conditions acceptable to Mortgagee. Additionally, so long as no Event of Default has occurred, Mortgagee shall, to the extent funds are available for such purpose in the Leasing Reserve, disburse to Mortgagor the amount paid by Mortgagor in performing such Leasing Costs following: (a) the receipt by Mortgagee of a written request from Mortgagor for disbursement from the Leasing Reserve and a certification by Mortgagor that (i) for Leasing Costs consisting of commissions payable to brokers not affiliated with Mortgagor and at a rate not greater than the then -current market rate, such leasing DOCSNt H17'735.13 8233-77= S32 50 commission has been paid by Mortgagor, and (ii) for Leasing Costs consisting of amounts required to be expended pursuant to the relevant Lease for tenant improvement or related costs, said Leasing Costs have been paid and the tenant under such Lease has taken possession of its demised premises and begun to pay rent under its Lease, (b) the delivery to Mortgagee of invoices, receipts or other evidence satisfactory to Mortgagee verifying the cost of such Leasing Costs; (c) for disbursement requests in excess of S10,000.00, the delivery to Mortgagee of affidavits, lien waivers or other evidence reasonably satisfactory to Mortgagee showing that all matenalmen, laborers, subcontractors and any other parties who might or could claim statutory or common law liens and are furnishing or have furnished material or labor to the property have been paid (or will be paid out of such disbursement) all amounts due for labor and materials furnished to the Property; (d) for disbursement requests in excess of 510,000.00 (other than with respect to leasing commissions), delivery to Mortgagee of a certification from an inspecting architect or other third party acceptable to Mortgagee describing the completed tenant improvement or other work, and verifying the completion and the value thereof, (e) for disbursement requests in excess of 510,000.00 (other than with respect to leasing commissions), delivery to Mortgagee of a new certificate of occupancy for the portion of the Improvements covered by such Lease, if said new certificate of occupancy was required by law, or a certification by Mortgagor that no new certificate of occupancy was required and (f) the receipt by Mortgagee of an administrative fee in the amount of 5150.00. Mortgagee shall also pay such servicing fees related to the Leasing Reserve as are normally and customarily charged by the servicer of the Loan for administrating similar leasing reserves. Notwithstanding the foregoing, at Mortgagor's request, with respect to disbursement requests in excess of $10,000, Mortgagee will make disbursements from the Leasing Reserve based upon an invoice and without requiring Mortgagor to have previously paid such invoice so long as such disbursements are made by virtue of a joint check in favor of Mortgagor and the applicable vendor or contractor. In making any payment from the Leasing Reserve, Mortgagee shall be entitled to rely on such request from Mortgagor without any inquiry into the accuracy, validity or contestability of any such amount. The Leasing Reserve shall not, unless otherwise explicitly required by applicable law, be or be deemed to be escrow or trust funds, but, at Mortgagee's option and in Mortgagee's discretion, may either be held in a separate account or be commingled by Mortgagee with the general funds of Mortgagee. No interest on the funds contained in the Leasing Reserve shall be paid by Mortgagee to Mortgagor. The Leasing Reserve is solely for the protection of Mortgagee and entails no responsibility on Mortgagee's part beyond the payment of the costs and expenses described in this paragraph in accordance with the terms hereof and beyond the allowing of due credit for the sums actually received. In the event that the amounts on deposit or available in the Leasing Reserve are inadequate to pay Leasing Costs in connection with any Lease, Mortgagor shall pay the amount of such deficiency. 1.37. Covenants With Respect To REA (a) Mortgagor shall: (i) promptly perform and/or observe all of the material covenants and agreements required to be performed and observed by Mortgagor under the REA, and do all things necessary to preserve and to keep unimpaired its material rights thereunder; D0C'SN)'1:67: -3-.1 (ii) promptly notify Mortgagee of any default under the REA of which it is aware; (iii) promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and/or observed by the other parties to the REA. (b) Mortgagor shall not, without Mortgagee's prior consent: (i) surrender, terminate or cancel the REA; (ii) reduce or consent to the reduction of the term of the REA; (iii) increase or consent to the increase of the amount of any charges payable by Mortgagor to another party to the REA pursuant to the provisions thereof; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the REA in any material respect. (c) Notwithstanding anything to the contrary, the approval procedures for the Leases that are set forth in Section 1.12(a) hereof shall apply to the submission and approval of all amendments, modifications and terminations of REA for which Mortgagee's consent or approval is required under the Loan Documents. ARTICLE 11 EVENTS OF DEFAULT 2.1. Events of Default. The occurrence of any of the following events shall be an Event of Default hereunder: (a) Mortgagor fails to pay any money to Mortgagee required hereunder at the time or within any applicable ;race period set forth herein, or if no grace period is set forth herein; then within seven (7) days of the date such payment is due (except those regarding payments to be made under the Note, which failure is subject to any grace periods set forth in the Note). (b) Mortgagor fails to provide insurance as required by Section 1.4 hereof or fails to perform any covenant, agreement, obligation, term or condition set forth in Sections 1.5. 1.15. I.31. 1.33 or I.34 hereof. (c) Mortgagor fails to perform any other covenant, agreement, obligation, term or condition set forth herein, other than those otherwise described in this Section 2. J., and, to the extent such failure or default is susceptible of being cured, the continuance of such failure or default for thirty (30) days after written notice thereof from Mortgagee to Mortgagor; provided, however, that if such default is susceptible of cure but such cure cannot be accomplished with reasonable diligence within said period of time, and if Mortgagor commences to cure such default promptly after receipt of notice thereof from Mortgagee, and thereafter prosecutes the curing of such default with reasonable diligence, such period of time shall be DOC'SNY I :6?3'• 35.13 extended for such period of time as may be necessary to cure such default with reasonable diligence. but not to exceed an additional ninety (90) days. (d) Any representation or warranty made herein, in or in connection with any application or commitment relating to the loan evidenced by the Note, or in any of the other Loan Documents to Mortgagee by Mortgagor, by any principal, general partner, manager or member in Mortgagor, or by any Indemnitor is determined by Mortgagee to have been false or misleading in any material respect at the time made. (e) There shall be a sale, conveyance, disposition, alienation, hypothecation, leasing, assignment, pledge, mortgage, granting of a security interest in or other transfer or further encumbrancing of the Mortgaged Property, Mortgagor or its general partners or managing members, or any portion thereof or any interest therein, in violation of Section 1.13 hereof. (f) A default occurs under any of the other Loan Documents which has not been cured within any applicable grace or cure period therein provided. (g) Mortgagor, any principal, general partner, managing member or non- member manager in Mortgagor or any Indemnitor becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or files a petition in bankruptcy, or is voluntarily adjudicated insolvent or bankrupt or admits in writing the inability to pay its debts as they mature, or petitions or applies to any tribunal for or consents to or fails to contest the appointment of a receiver, trustee, custodian or similar officer for Mortgagor, for any such principal, general partner, managing member or non-member manager of Mortgagor or for any Indemnitor or for a substantial part of the assets of Mortgagor, of any such principal, general partner, managing member or non-member manager of Mortgagor or of any Indemnitor, or commences any case, proceeding or other action under any bankruptcy, reorganization, arrangement, readjustment or debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect. (h) A petition is filed or any case, proceeding or other action is commenced against Mortgagor, against any principal, general partner, managing member or non-member manager of Mortgagor or against any Indemnitor seeking to have an order for relief entered against it as debtor or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or other relief under any law relating to bankruptcy, insolvency, arrangement, reorganization, receivership or other debtor relief under any law or statute of any jurisdiction, whether now or hereafter in effect, or a court of competent jurisdiction enters an order for relief against Mortgagor, against any principal, general partner, managing member or non-member manager of Mortgagor or against any Indemnitor, as debtor, or an order, judgment or decree is entered appointing, with or without the consent of Mortgagor or of any Indemnitor, a receiver, trustee, custodian or similar officer for Mortgagor, for any such principal, general partner, managing member or non-member manager of Mortgagor or for any Indemnitor, or for any substantial part of any of the properties of Mortgagor, of any such principal, general partner, ,.3 managing member or non-member manager of Mortgagor or of any Indemnitor, and if any such event shall occur, such petition, case, proceeding, action, order, judgment or decree is not dismissed within ninety (90) days after being commenced. DOCS a 1:0737,1;.13 J 8211 s12 53 (i) The Mortgaged Property or any part material thereof is taken on execution or other process of law in any action against Mortgagor. (j) Mortgagor abandons all or a material portion of the Mortgaged Property except as expressly permitted hereby. (k) The holder of any lien or security interest on the Mortgaged Property (without implying the consent of Mortgagee to the existence or creation of any such lien or security interest), whether superior or subordinate to this Mortgage or any of the other Loan Documents, declares a default and such default is not cured xvithin any applicable grace or cure period set forth in the applicable document or such holder institutes foreclosure or other proceedings for the enforcement of its remedies thereunder. _7 (1) The Mortgaged Property, or any part thereof, is subjected to waste or to removal, demolition or material alteration (except as expressly permitted hereby) so that the value of the Mortgaged Property is materially diminished thereby and Mortgagee reasonably determines that it is not adequately protected from any loss, damage or risk associated therewith. (m) Any dissolution, termination, partial or complete liquidation, merger or consolidation of Mortgagor, any of its principals, any general partner or any managing member, or any Indemnitor except as expressly permitted by Section 1.13 hereof. (n) SPC Entity fails_ to perform any covenant, agreement, obligation, term or condition of Section 1.33. (o) If a default has occurred and continues beyond any applicable cure period under the REA, but only if such default permits any other party to the REA to terminate or cancel the REA; ARTICLE III REINIEDIES 3.1. Remedies Available. If there shall occur an Event of Default under this Mortgage, then this Mortgage is subject to foreclosure as provided by law and Mortgagee may, at its option and by or through a trustee, nominee, assignee or otherwise, to the fullest extent permitted by law, exercise any or all of the following rights, remedies and recourses, either successively or concurrently: (a) Acceleration. Accelerate the maturity date of the Note and declare any or all of the Debt to be immediately due and payable without any presentment, demand, protest, notice or action of any kind whatever (each of which is hereby expressly waived by Mortgagor), whereupon the same shall become immediately due and payable. Upon any such acceleration, payment of such accelerated amount shall constitute a prepayment of the principal balance of the -' Note and any applicable prepayment fee provided for in the Note shall then be immediately due and payable. 11 54 s23_ ;;_ s32 (b) Entry on the Mortgaged Property. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Mortgaged Property, or any part thereof, without force or with such force as is permitted by law and without notice or process or with such notice or process as is required by law, unless such notice and process is waivable, in which case Mortgagor hereby waives such notice and process, and do any and all acts and perform any and all work which may be desirable or necessary in Mortgagee's judgment to complete any unfinished construction on the Premises, to preserve the value, marketability or rentability of the Mortgaged Property, to increase the income therefrom, to manage and operate the Mortgaged Property or to protect the security hereof, and all sums expended by Mortgagee therefor, together with interest thereon at the Default Interest Rate, shall be immediately due and payable to Mortgagee by Mortgagor on demand and shall be secured hereby and by all of the other Loan Documents securing all or any part of the Debt. (c) Collect Rents. With or without taking possession of the Mortgaged Property, sue or otherwise collect the Rents, including those past due and unpaid. (d) Appointment of Receiver. Upon, or at any time prior or after, initiating the exercise of any power of sale, instituting any judicial foreclosure or instituting any other foreclosure of the liens and security interests provided for herein or any other legal proceedings hereunder, make application to a court of competent jurisdiction for appointment of a receiver for all or any part of the Mortgaged Property, as a matter of strict right and without notice to Mortgagor and without regard to the adequacy of the Mortgaged Property for the repayment of the Debt or the solvency of Mortgagor or any person or persons liable for the payment of the Debt, and Mortgagor does hereby irrevocably consent to such appointment, waive any and all notices of and defenses to such appointment and agree not to oppose any application therefor by Mortgagee, but nothing herein is to be construed to deprive Mortgagee of any other right, remedy or privilege Mortgagee may now have under the law to have a receiver appointed, provided, however, that the appointment of such receiver, trustee or other appointee by virtue of any court order, statute or regulation shall not impair or in any manner prejudice the rights of Mortgagee to receive payment of the Rents pursuant to other terms and provisions hereof. Any such receiver shall have all of the usual powers and duties of receivers in similar cases, including, without limitation, the full power to hold, develop, rent, lease, manage, maintain, operate and otherwise use or permit the use of the Mortgaged Property upon such terms and conditions as said receiver may deem to be prudent and reasonable under the circumstances as more fully set forth in Section 3.3 below. Such receivership shall, at the option of Mortgagee, continue until full payment of all of the Debt or until title to the Mortgaged Property shall have passed by foreclosure sale under this Mortgage or deed in lieu of foreclosure. (e) EorecIosure. Immediately commence an action to foreclose this Mortgage or to specifically enforce its provisions with respect to any of the Debt, pursuant to the statutes in such case made and provided, and sell the Mortgaged Property or cause the Mortgaged Property to be sold in accordance with the requirements and procedures provided by said statutes in a single parcel or in several parcels at the option of Mortgagee. In the event foreclosure proceedings are instituted by Mortgagee, all expenses incident to such proceedings, including, but not limited to, reasonable attorneys' fees and costs, shall be paid by Mortgagor and secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. L)O('SNY1:6?_ -35.13 8'_3? -7,'5 S32 55 The Debt and all other obligations secured by this Mortgage, including, without limitation, interest at the Default Interest Rate, any prepayment charge, fee or premium required to be paid under the Note in order to prepay principal (to the extent permitted by applicable law), reasonable attorneys' fees and any other amounts due and unpaid to Mortgagee under the Loan Documents, may be bid by Mortgagee in the event of a foreclosure sale hereunder. In the event of a judicial sale pursuant to a foreclosure decree, it is understood and agreed that Mortgagee or its assigns may become the purchaser of the Mortgaged Property or any part thereof. (f) Judicial Remedies. Proceed by suit or suits, at law or in equity, instituted by or on behalf of Mortgagee, to enforce the payment of the Debt or the other obligations of Mortgagor hereunder or pursuant to the Loan Documents, to foreclose the liens and security interests of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. This remedy shall be cumulative of any other non -judicial remedies available to Mortgagee with respect to the Loan Documents. Proceeding with the request or receiving a judgment for legal relief shall not be or be deemed to be an election of remedies or bar any available non judicial remedy of Mortgagee. (g) Other. Exercise any other right or remedy available hereunder, under any of the other Loan Documents or at law or in equity. 3.2. Application of Proceeds. To the fullest extent permitted by law, the proceeds of any sale under this Mortgage shall be applied, to the extent funds are so available, to the following items in such order as Mortgagee in its discretion may determine: (a) To payment of the reasonable costs, expenses and fees of taking possession of the Mortgaged Property, and of holding, operating, maintaining, using, leasing, repairing, improving, marketing and selling the same and of otherwise enforcing Mortgagee's rights and remedies hereunder and under the other Loan Documents, including, but not limited to, receivers' fees, court costs, attorneys', accountants', appraisers', managers' and other professional fees, title charges and transfer taxes. (b) To payment of all sums expended by Mortgagee under the terms of any of the Loan Documents and not yet repaid, together with interest on such sums at the Default Interest Rate. (c) To payment of the Debt and all other obligations secured by this Mortgage, including, without limitation, interest at the Default Interest Rate and, to the extent permitted by applicable law, any prepayment fee, charge or premium required to be paid under - the Note in order to prepay principal, in any order that Mortgagee chooses in its sole discretion. (d) The remainder, if any, of such funds shall be disbursed to Mortgagor or to the person or persons legally entitled thereto. 3.3. Right and Authority of Receiver or Mortgagee in the Event of Default: Pmi-er of :attorney. Upon the occurrence of an Event of Default, and entry upon the Mortgaged Property pursuant to Section 3.1(b) hereof or appointment of a receiver pursuant to Section 11M hereof, and under such terms and conditions as may be prudent and reasonable under the DOC'SNY 1:117373 c.13 5'_33-775 S32 56 circumstances in Mortgagee's or the receiver's sole discretion, all at Mortgagor's expense, Mortgagee or said receiver, or such other persons or entities as they shall hire, direct or engage, as the case may be, may do or permit one or more of the following, successively or concurrently: (a) enter upon and take possession and control of any and all of the Mortgaged Property; (b) take and maintain possession of all documents, books, records, papers and accounts relating to the Mortgaged Property; (c) exclude Mortgagor and its agents, servants and employees wholly from the Mortgaged Property; (d) manage and operate the Mortgaged Property; (e) preserve and maintain the Mortgaged Property; (f) make repairs and alterations to the Mortgaged Property; (g) complete any construction or repair of the Improvements, with such changes, additions or modifications of the plans and specifications or intended disposition and use of the Improvements as Mortgagee may in its sole discretion deem appropriate or desirable to place the Mortgaged Property in such condition as will, in Mortgagee's sole discretion, make it or any part thereof readily marketable or rentable; (h) conduct a marketing or leasing program with respect to the Mortgaged Property, or employ a marketing or leasing agent or agents to do so, directed to the leasing or sale of the Mortgaged Property under such terms and conditions as Mortgagee may in its sole discretion deem appropriate or desirable; (i) employ such contractors, subcontractors, matenalmen, architects, engineers, consultants, managers, brokers, marketing agents, or other employees, agents, independent contractors or professionals, as Mortgagee may in its sole discretion deem appropriate or desirable to implement and effectuate the rights and powers herein granted; 0) execute and deliver, in the name of Mortgagee as attorney-in-fact and agent of Mortgagor or in its own name as Mortgagee, such documents and instruments as are necessary or appropriate to consummate authorized transactions; (k) enter into such leases, whether of real or personal property, or tenancy agreements, under such terms and conditions as Mortgagee may in its sole discretion deem appropriate or desirable; (1) collect and receive the Rents from the Mortgaged Property; (m) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of their leases or other agreements; (n) sue for unpaid Rents, payments, income or proceeds in the name of Mortgagor or Mortgagee; (o) maintain actions in forcible entry and detainer, ejectment for possession and actions in distress for rent; (p) compromise or give acquittance for Rents, payments, income or proceeds that may become due; (q) delegate or assign any and all rights and powers given to Mortgagee by this Mortgage; and (r) do any acts which Mortgagee in its sole discretion deems appropriate or desirable to protect the security hereof and use such measures, legal or equitable, as Mortgagee may in its sole discretion deem appropriate or desirable to implement and effectuate the provisions of this Mortgage. This Mortgage shall constitute a direction to and full authority to any lessee, or other third party who has heretofore dealt or contracted or may hereafter deal or contract with Mortgagor or Mortgagee, at the request of Mortgagee, to pay all amounts owing under any lease, contract, concession, license or other agreement to Mortgagee without proof of the Event of Default relied upon. Any such lessee or third party is hereby irrevocably authorized to rely upon and comply with (and shall be fully protected by Mortgagor in so doing) any request, notice or demand by Mortgagee for the payment to Mortgagee of any Rents or other sums which may be or thereafter C. become due under its lease, contract, concession, license or other agreement, or for the performance of any undertakings under any such lease, contract, concession, license or other agreement, and shall have no right or duty to inquire whether any Event of Default under this Mortgage or under any of the other Loan Documents has actually occurred or is then existing. Mortgagor hereby constitutes and appoints Mortgagee, its assignees, successors, transferees and nominees, as Mortgagor's true and lawful attorney-in-fact and agent, with full power of Dxx's Y1:6n3'3:.L3 U! s, - s32 57 substitution in the Mortgaged Property, in Mortgagor's name, place and stead, to do or permit any one or more of the foregoing described rights, remedies, powers and authorities, successively or concurrently, and said power of attorney shall be deemed a power coupled with an interest and irrevocable so long as any portion of the Debt is outstanding. Any money advanced by Mortgagee in connection with any action taken under this Section 3.3, together with interest thereon at the Default Interest Rate from the date of making such advancement by Mortgagee until actually paid by Mortgagor, shall be a demand obligation owing by Mortgagor to Mortgagee and shall be secured by this Mortgage and by every other instrument securing all or any portion of the Debt. 3.4. Occu ancv After Foreclosure. In the event there is a foreclosure sale hereunder and at the time of such sale, Mortgagor or Mortgagor's representatives, successors or assigns, or any other persons claiming any interest in the Mortgaged Property by, through or under Mortgagor (except tenants of space in the Improvements subject to leases entered into prior to the date hereof or otherwise having a legal right to do so (i.e. SNDA)) are occupying or using the Mortgaged Property, or any part thereof, then, to the extent not prohibited by applicable law, each and all shall, at the option of Mortgagee or the purchaser at such sale, as the case may be, immediately become the tenant of the purchaser at such sale, which tenancy shall be a tenancy from day-to-day, terminable at the will of either landlord or tenant, at a reasonable rental per day based upon the value of the Mortgaged Property occupied or used, such rental to be due daily to the purchaser. Further, to the extent permitted by applicable law, in the event the tenant fails to surrender possession of the Mortgaged Property upon the termination of such tenancy, the purchaser shall be entitled to institute and maintain an action for unlawful detainer of the Mortgaged Property in the appropriate court of the county in which the Premises is located. 3.5. Notice to Account Debtors. Mortgagee may, at any time after an Event of Default, notify the account debtors and obligors of any accounts, chattel paper, negotiable instruments or other evidences of indebtedness due or payable to Mortgagor included as part of the Mortgaged Property to pay Mortgagee directly. Mortgagor shall at any time or from time to time upon the request of Mortgagee provide to Mortgagee a current list of all such account debtors and obligors and their addresses. 3.6. Cumulative Remedies. All remedies contained in this Mortgage are cumulative and Mortgagee shall also have all other remedies provided at law and in equity or in any other Loan Documents. Such remedies may be pursued separately, successively or concurrently at the sole subjective direction of Mortgagee and may be exercised in any order and as often as occasion therefor shall arise. No act of Mortgagee shall be construed as an election to proceed under any particular provisions of this Mortgage to the exclusion of any other provision of this Mortgage or as an election of remedies to the exclusion of any other remedy which may then or thereafter be available to Mortgagee. No delay or failure by Mortgagee to exercise any right or remedy under this Mortgage shall be construed to be a waiver of that right or remedy or of any Event of Default. Mortgagee may exercise any one or more of its rights and remedies at its option without regard to the adequacy of its security. 3.7. PaN,ment of Expenses. Mortgagor shall pay on demand all of Mortgagee's expenses incurred in any efforts to enforce any terms of this Mortgage, subject to the provisions below, whether or not any lawsuit is filed and whether or not foreclosure is commenced but not y DOCS w1:a?_-3_.i_, completed, including, but not limited to, reasonable legal fees and disbursements, foreclosure costs and title charges, together with interest thereon from and after the date incurred by Mortgagee until actually paid by Mortgagor at the Default Interest Rate, and the same shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt provided, however, if any litigation is commenced between the parties hereto or their representatives, or if any party hereto institutes any proceeding in any bankruptcy or similar court which has jurisdiction over such party (or any or all of its property or assets) concerning- any oncerningany provision of this Agreement or other rights or duties of such party in relation thereto, the party prevailing in such litigation (or the non -bankrupt party, as the case may be) shall be entitled, in addition to such other and further relief as may be granted, to all costs incurred in enforcing its rights and remedies under this Agreement, including but not limited to reasonable attorneys' fees, out-of-pocket costs and expenses, and court costs in such litigation in an amount determined by the court in such litigation, or in separate action brought for the purpose of recovery of same. ARTICLE IV INJISCELLANFOUS TERAS AND CON'DITION'S 4.1. Time of Essence. provisions of this Mortgage. Time of performance is of the essence with respect to all 4.2. Release of Mortgage- If all of the Debt be paid, then and in that event only, all rights under this Mortgage and the other Loan Documents, except for those provisions hereof which by their terms survive, shall terminate and the Mortgaged Property shall become wholly clear of the liens, security interests, conveyances and assignments evidenced hereby, which shall be promptly released of record by Mortgagee in due form at Mortgagor's cost. No release of this Mortgage or the lien hereof shall be valid unless executed by Mortgagee. 4.3. Certain Rights of Mortgagee. Without affecting Mortgagor's liability for the payment of any of the Debt, Mortgagee may from time to time and without notice to Mortgagor: (a) release any person liable for the payment of the Debt; (b) extend or modify the terms of payment of the Debt; (c) accept additional real or personal property of any kind as security or alter, substitute or release any property securing the Debt; (d) recover any part of the Mortgaged Property; (e) consent in writing to the making of any subdivision map or plat thereof, (f) join in granting any easement therein; or (g) join in any extension agreement of this Mortgage or any agreement subordinating the lien hereof. 4.4. Waiver of Certain Defenses. No action for the enforcement of the lien hereof or of any provision hereof shall be subject to any defense which would not be good and available to the party interposing the same in an action at law upon the Note or any of the other Loan Documents. 4.5. Notices. All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of the same in person to the intended addressee, or by depositing the same with Federal Express or another reputable private courier service that obtains a receipt upon delivery for next business day delivery, or by depositing the same in the DOC'S N Y 1:c+?3-35.13 1J 823'-775 S32 59 Doc# 2000027337 United States mail, postage prepaid, registered or certified mail, return receipt requested, in any event addressed to the intended addressee to Mortgagor at its address set forth on the first page of this Mortgage, to Mortgagee at First Union National Bank, One First Union Center, DC 6, 301 South College Street, Charlotte, North Carolina 28288-0166, Attn: Craig Lieberman, Real Estate Capital Markets Contract Finance, or at such other address as may be designated by either party as herein provided. All notices, demands and requests shall be effective upon such personal delivery, or one (1) business day after being deposited Nvith the private courier service, or three (3) business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein provided shall be deemed to be receipt of the notice, demand or request sent. By giving to the other party hereto at least fifteen (15) days' prior written notice thereof in accordance with the provisions hereof, the parties hereto shall have the right from time to time to change their respective addresses and each shall have the right to specify as its address any other or additional address within the United States of America. 4.6. Successors and Assi6ns: Joint and Several Liability. The terms, provisions, indemnities, covenants and conditions hereof shall be binding upon and shall inure to the benefit of Mortgagor and the successors and assigns of Mortgagor, including all successors in interest of Mortgagor in and to all or any part of the Property, Mortgagee, its directors, officers, shareholders, employees and agents and their respective successors and assigns and shall constitute covenants running with the land. All references in this Mortgage to Mortgagor or Mortgagee shall be deemed to include all such parties' successors and assigns, and the term "Mortgagee" as used herein shall also mean and refer to any lawful holder or owner, including ' pledgees and participants, of any of the indebtedness secured hereby. If Mortgagor or Mortgagee consists of more than one person or entity, each will be jointly and severally liable to perform the obligations of Mortgagor. 4.7. Severabilitv. A determination that any provision of this Mortgage is unenforceable or invalid shall not affect the enforceability or validity of any other provision, and any determination that the application of any provision of this Mortgage to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances. 4.8. Gender. Within this Mortgage, words of any gender shall be held and construed to include any other gender, and words in the singular shall be held and construed to include the plural, and vice versa, unless the context otherwise requires. 4.9. Waiver: Discontinuance of Proceedings. Mortgagee may waive any single Event of Default by Mortgagor hereunder without waiving any other prior or subsequent Event of Default. Mortgagee may remedy any Event of Default by Mortgagor hereunder without waiving the Event of Default remedied. Neither the failure by Mortgagee to exercise, nor the delay by Mortgagee in exercising, any right, power or remedy upon any Event of Default by Mortgagor hereunder shall be construed as a waiver of such Event of Default or as a waiver of the right to exercise any such right, power or remedy at a later date. No single or partial exercise by Mortgagee of any right, power or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right, power or remedy hereunder may be exercised at any time and from time to time. No modification or waiver of any provision hereof DOCsnY1:e;3'35.13 8'_33-%'• 5 S32 60 nor consent to any departure by Mortgagor therefrom shall in any event be effective unless the same shall be in writing and signed by Mortgagee, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose given. No notice to or demand on Mortgagor in anv case shall of itself entitle Mortgagor to any other or further notice or demand in similar or other circumstances. Acceptance by Mortgagee of any payment in an amount less than the amount then due on any of the Debt shall be deemed an acceptance on account only and shall not in any way affect the existence of an Event of Default. In case Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under the other Loan Documents and shall thereafter elect to discontinue or abandon the same for any reason prior to completion thereof, Mortgagee shall have the unqualified right to do so and, in such an event, Mortgagor and Mortgagee shall be restored to their former positions with respect to the Debt, the Loan Documents, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of Mortgagee shall continue as if the same had never been invoked. 4.10. Section Headings. The headings of the sections and paragraphs of this Mortgage are for convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof. 4.11. GOVERNING LAW. THIS MORTGAGE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, PROVIDED THAT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING, AND PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN THE MORTGAGED PROPERTY LOCATED IN SUCH STATE. 4.12. Countinz of Days. The term "days" when used herein shall mean calendar days. If any time period ends on a Saturday, Sunday or holiday officially recognized by the state within which the Premises is located, the period shall be deemed to end on the next succeeding business day. The term "business day" when used herein shall mean a weekday, Monday through Friday, except a legal holiday or a day on which banking institutions in New York, New York are authorized by law to be closed. 4.13. Relationship of the Parties. The relationship between Mortgagor and Mortgagee is that of a borrower and a lender only and neither of those parties is, nor shall it hold itself out to be, the agent, employee, joint venturer or partner of the other party. 4.14. Application of the Proceeds of the Note. To the extent that proceeds of the Note are used to pay indebtedness secured by any outstanding lien, security interest, charge or prior encumbrance against the Mortgaged Property, such proceeds have been advanced by Mortgagee at Mortgagor's request and Mortgagee shall be subrogated to any and all rights, security interests and liens owned by any owner or holder of such outstanding liens, security interests, charges or encumbrances, irrespective of whether said liens, security interests, charges or encumbrances are released. D005NY I :a?3-3:-! 3 61 823' 7715 s32 4.15. Unsecured Portion of Indebtedness. If any part of the Debt cannot be lawfully secured by this Mortgage or if any part of the Mortgaged Property cannot be lawfully subject to the lien and security interest hereof to the full extent of such indebtedness, then all payments made shall be applied on said indebtedness first in discharge of that portion thereof which is unsecured by this Mortgage. 4.16. Cross Default. An Event of Default hereunder which has not been cured within any applicable grace or cure period shall be a default under each of the other Loan Documents. 4.17. Interest After Sale. In the event the Mortgaged Property or any part thereof shall be sold upon foreclosure as provided hereunder, to the extent permitted by law, the sum for which the same shall have been sold shall, for purposes of redemption (pursuant to the laws of the State of in which the Premises is located), bear interest at the Default Interest Rate. 4.18. Inconsistence with Other Loan Documents. In the event of any inconsistency between the provisions hereof and the provisions in any of the other Loan Documents, it is intended that the provisions of the Note shall control over the provisions of this Mortgage, and that the provisions of this Mortgage shall control over the provisions of the Assignment of I Leases and Rents, the Guaranty and Indemnity Agreement, the Environmental Indemnity Agreement, and the other Loan Documents. 4.19. Construction of this Document. This document may be construed as a mortgage, security deed, deed of trust, chattel mortgage, conveyance, assignment, security agreement, pledge, financing statement, hypothecation or contract, or any one or more of the foregoing, in order to fully effectuate the liens and security interests created hereby and the purposes and agreements herein set forth. 4.20. No ?Berger. It is the desire and intention of the parties hereto that this Mortgage and the lien hereof do not merge in fee simple title to the Mortgaged Property. It is hereby understood and agreed that should Mortgagee acquire any additional or other interests in or to the Mortgaged Property or the ownership thereof, then, unless a contrary intent is manifested by Mortgagee as evidenced by an appropriate document duly recorded, this Mortgage and the lien hereof shall not merge in such other or additional interests in or to the Mortgaged Property, toward the end that this Mortgage may be foreclosed as if owned by a stranger to said other or additional interests. 4.21. Rights With Respect to Junior Encumbrances. Any person or entity purporting to have or to take a junior mortgage or other lien upon the Mortgaged Property or any interest therein shall be subject to the rights of Mortgagee to amend, modify, increase, vary, alter or supplement this Mortgage, the Note or any of the other Loan Documents, and to extend the maturity date of the Debt, and to increase the amount of the Debt, and to waive or forebear the exercise of any of its rights and remedies hereunder or under any of the other Loan Documents and to release any collateral or security for the Debt, in each and every case without obtaining the consent of the holder of such junior lien and without the lien or security interest of this Mortgage losing its priority over the rights of any such junior lien. ucx'stivi:i,-,-:5.i; I.Ys-==- s;z 62 4.22. Morma--ee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Mortgagor or the principals, general partners or managing members in Mortgagor, or their respective creditors or property, Mortgagee, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Mortgagee allowed in such proceedings for the entire Debt at the date of the institution of such proceedings and for any additional amount which may become due and payable by Mortgagor hereunder after such date. 4.23. Fixture Filing. This Mortgage shall be effective from the date of its recording as a financing statement filed as a fixture filing with respect to all goods constituting part of the Mortgaged Property which are or are to become fixtures. This Mortgage shall also be effective as a financing statement covering minerals or the like (including oil and gas) and is to be filed for record in the real estate records of the county where the Premises is situated. The mailing address of Mortgagor and the address of Mortgagee from which information concerning the security interests may be obtained are set forth in Section 1.22 above. 4.24. After -Acquired 11ort2a!Zed Pro ert%. All property acquired by Mortgagor after the date of this Mortgage which by the terms of this Mortgage is subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Mortgagor and without further mortgage, conveyance or assignment become subject to the lien and security interest created by this Mortgage. Nevertheless, Mortgagor shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further mortgages, security agreements, financing statements, assignments and assurances as Mortgagee shall require for accomplishing the purposes of this Mortgage. 4.25. \o Representation. By accepting delivery of any item required to be observed, performed or fulfilled or to be given to Mortgagee pursuant to the Loan Documents, including, but not limited to, any officer's certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal or insurance policy, Mortgagee shall not be deemed to have warranted, consented to, or affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance of delivery thereof shall not be or constitute any warranty, consent or affirmation with respect thereto by Mortgagee. 4.26. Counterparts. This Mortgage may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Mortgage may be detached from any counterpart of this Mortgage without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Mortgage identical in form hereto but having attached to it one or more additional signature pages. 4.27. Personal Liability. Notwithstanding anything to the contrary contained in this Mortgage, the liability of Mortgagor and its officers, directors, general partners, managers, members and principals for the Debt and for the performance of the other agreements, covenants and obligations contained herein and in the Loan Documents shall be limited as set forth in Section 2.6 of the Note. uocswi:(,71-35.I- IJ 8233-775 s32 63 4.28. Recordin,2 and Fiiina. Mortgagor will cause the Loan Documents and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and re -filed in such manner and in such places as Mortgagee shall reasonably request, and will pay on demand all such recording, filing, re-recording and re -filing taxes, fees and other charges. Mortgagor shall reimburse Mortgagee, or its servicing agent, for the reasonable and customary costs incurred in obtaining a tax service company to verify the status of payment of taxes and assessments on the Mortgaged Property. 4.29. Entire_ Agreement and Modifications. This Mortgage and the other Loan Documents contain the entire agreements between the parties relating to the subject matter hereof and thereof and all prior agreements relative hereto and thereto which are not contained herein or therein are terminated. This Mortgage and the other Loan Documents may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party. 4.30. Maximum Interest. The provisions of this Mortgage and of all agreements between Mortgagor and Mortgagee, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreed to be paid to Mortgagee for the use, forbearance or retention of the money loaned under the Note ("Interest") exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision hereof or of any agreement between Mortgagor and Mortgagee shall, at the time performance or fulfillment of such provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be performed or fulfilled shall be reduced to such limit, and if, from any circumstance whatsoever, Mortgagee shall ever receive anything of value deemed Interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive Interest shall be applied to the reduction of the principal balance owing under the Note in the inverse order of its maturity (whether or not then due) or, at the option of Mortgagee, be paid over to Mortgagor, and not to the payment of Interest. All Interest (including any amounts or payments deemed to be Interest) paid or agreed to be paid to Mortgagee shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal balance of the Note so that the Interest thereon for such full period will not exceed the maximum amount permitted by applicable law. This Section will be paramount to all other agreements between Mortgagor and Mortgagee. 4.31. Interest Payable b► Mortgagee shall cause funds in the Replacement Reserve to be deposited into interest bearing accounts of the type described in Exhibit D hereto, which accounts may not yield the highest interest rate then available. Interest payable on such amounts shall be computed based on the daily outstanding balance in the J Replacement Reserve. Such interest shall be calculated on a simple, non -compounded interest basis based solely on contributions made to the Replacement Reserve by Mortgagor. All interest earned on amounts contributed to the Replacement Reserve shall be retained by Mortgagee and UUCSNN'I:(,7' 3 .13 81_33-±-3 S32 64 accumulated for the benefit of Mortgagor and added to the balance in the Replacement Reserve and shall be disbursed for payment of the items for which other funds in the Replacement Reserve are to be disbursed. 4.32. Dissemination of Information. (a) If Mortgagee determines at anv time to sell, transfer or assign the Note, this Mortgage and the other Loan Documents, and any or all servicing rights with respect thereto, or to grant participations therein (the "Participations") or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the "Securities"), Mortgagee may forward to each purchaser, transferee, assignee, servicer, participant, investor, or their respective successors in such Participations and/or Securities (collectively, the "investor") or any rating agency rating such Securities, each prospective Investor and each of the foregoing's respective counsel, all documents and information which Mortgagee now has or may hereafter acquire relating to the Debt and to Mortgagor, any guarantor, any indemnitor and the Mortgaged Property, which shall have been furnished by Mortgagor, any guarantor or any indemnitor as Mortgagee determines necessary or desirable. (b) Secondary Market. Mortgagee may sell, transfer and deliver the Loan Documents to one or more Investors in the secondary mortgage market. In connection with such sale, may retain or assign responsibility for servicing the loan or may delegate some or all of such responsibility and/or obligations to a servicer, including, but not limited to, anv subservicer or master servicer, on behalf of the investors. All references to Mortgagee herein shall refer to and include, without limitation, any such servicer, to the extent applicable. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] j DOCSN J 8133-775 S32 65 rel IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on the day and year first written above. MORTGAGOR: PARK PLAZA MALL, LLC, a Delaware limited liability company By: Park Plaza 3, LLC, a Delaware limited liability company, its general manager By. t� _ Name: Daniel P. Friedman 1 Title: President CONSENTED AND AGREED TO AS TO THE PROVISIONS OF SECTION 1.33(b) PARK PLAZA 3, LLC a Delaware limited liability company f By: 2 Name: Its: I l�✓7�. WL 11 DOCSNYI:G "3"35.1: 8233-775 S', 6 State offs ) ss� Lz Countvof Lr ic: t On this day personally appeared before me, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, Daniel P. Friedman, to me personally well known and who acknowledged that he was the President of Park Plaza 3, LLC , who is the general manager of Park Plaza Mall, LLC and was duly authorized as such to execute the foregoing instrument for, and in the name and behalf of said company further stated and acknowledged that he has so signed, executed and delivered said foregoing instrument for the consideration and purposes therein mentioned and set forth. WITNESS my hand and official seal on this day of April, 2000. /1,10TARI PUBLIC K ucx's.\N i"Ox26r i 821- CAT j GARY D. LAWMAN Notary Public, State o1 New York- No. orkNo. 4,-5054632 Qualified in Queens County Certificate Fled in New York Count}, Commission Expires .4zn. 22, 2002 Doc# 2000027337 E BCH IB IT A LEGAL DESCRIPTION Tract 1 (Reserve Tract "A"—Fee simple) A part of rhe NOrthca.at Quarter of the Northc= Quarter. Section 1, Township 1 North, Range 13 West. Pulaski. County, Arkansas, more particularly described as follows: From the Southeast corner of the said Northesst Quarter of the Northaur Quarter, run thence North 88 degrees 38 rnmutcs 23 seconds West and along the South lint a the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60 foot width) for 651.67 feet; thence North 01 degrecs 21 minutes 37 seconds East for 30.0 feet to the North right Of way line of West Markham Street; thence North 88 degrc= 38 minutes 23 sxonda Wast and along the ..tiorh right of way Iino of West Markharn Street for 264.08 feet; thence North 01 dcg= 21 minutes 37 seconds East for 42.00 feet; thence North 88 degrem 38 minutes 23 seconds Went for 250.64 feet to the Pain10 f Beginmug;- thence?north 00 degrees 29 minutes East for 168.54 fc=-thence North 88 degrees 37 minutes 06 seconds West for 15 0. 11 feet to the 1_= right 0fway line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence South 00 degrees 29 minutes West and along the East nghi of way line of McKinley Street and parallel with the West line oFthe Northeast Quarter of the Northeast Quarter for 210.50 feet m the North right of way line of West Marlchant Street and a point 34.0 feet North of the South line of the Northeast Quarter of the Northeast Quarto-, thence South 88 degrees 38 minutes 23 seconds East and along the North right of way line of West Markham Street and parallel with the South line of the Northeast Quarter of tho Northeast Quarter for 150.11 feet; thence North 00 degrees 29 minutes East for 42.0 feet to the Point of Beginrt.ing, containing 0.7256 acres, more or less. Now plaited as part of Tract A, Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C, Page 519, records of Pulaski County, Arkansas, T_F_SS AND EXCBPT Part of Tract A, Park Plaza Addition in the City of Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C at Page 519 being more particularly described as follows: BEGn1WWG at the Southwest corner of the said Tract A, Paris Plaza Addition; thence North 00 degrees 29 minutes 00 seconds East along the existing Past right of way line of McKinley Stmot 210.6 feet; thence South 88 degrees 40 minutes 49 seconds East along the North lino of said 'tract A, 18.14 feet; thence along the proposed East right of way line of McKiniey Street the following three courses and distances: 1) South 05 degre-..s 10 minutes 05 seconds East 67.00 feet 2) South 00 degrees 10 minutes 54 s=ands West 124.18 feet: and 3) South 44 degrees 29 minutes 51 seconds East 28.43 feet to the North right-of-way line of West Markham Street; thcuce along said North right-of-way line North 88 degrees 43 minutes 26 seconds West 45.49 feet to the point of beginning. Tract 2: (Reame Tact "B"—Fee simple) A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township l North, Runge 13 West, Pulaski County, Arkansas, more particularly described as follows: From the Southeast cornar of the said Northeast Quarter of the Northeast Quarter, nun thence North 88 degrees 38 minutes 23 s=oads Wast and along the South line of the said Northeast Quarter of the Northeast Quarter and the t:e=rline of West Markham Street (of 60.0 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 s=onds East for 30.0 feet to the North right of way line of West Markham Street.• thence North 88 degrcu 38 minutes 23 secar3dz Wast and n1ong the North —continued— Doc## 2000027337 Exhibit "A"—continued right of way line of Wegt Markham Street for 264.08 feet to the Point of Beginning; thence Notch 01 degrees 21 7 nutes 37 seconds East for 42.00 feet: thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet; :hence South 00 degrees 29 minutes West for 42.00 feet to the North right of way line of West Markham Street; thence South 88 degrees 38 minutes 23 seconds East and along the North right of way line of West Markham Street and parallel with the South line of the Northeast Quurter of the Northeast Quarter for 250.00 feet, more or 1 ess, to the Point of Beginning, containing 0.2413 acres, more or leAs, now platted as part of Tract D of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat recorded C-519, records of Pulaski County, Arkansas. Tract 3: (Reserve Tract "C" --F= simple) Being Lots 1, 2, 3 and 4, Hatay Meirose Addition to the City of Little Rack. Pulmki County, Arkansas, more particularly described as follows: from the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degtzes 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60.0 Foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feat; thence North 01 degrees 21 minutes 37 seconds East for 42.0 fent; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet: thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 556.51 feet to the Northwest corner of Lot 26, Henry Meirose Addition to the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest corner of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northmast Quarter of the Northeast Quarter for 20.0 feet to the Southwest corner of Lot 1, Henry Meirose Addition to the City of Little Rock (recorded in Plat Book 1, Page 62) and the Point of Beginning; thence continue North 00 degrees 29 minutes East and along the West line of said Lot 1 and parallc WI th the West line of the Northeast Quarter of the Northeast Quarter for 140.0 feet to the Northwest corner of said Lot 1 and a point on the South right of way line of "C" street (of varying width); thence South 88 degrees 50 minutes 28 seconds Eaat and along the North line of Lots 1, 2, 3 and 4, Hanxy Meirosc Addition to the City of Little Rock and the South right of way line of "C' Street 196.0 fat to the cotttnron North corner of Lots 4 and 5, Henry Meirow Addition; thence South 00 degrees 29 minutes Wen and along the common line of Lots 4 and 5, Henry Meirose Addition to the City of Little Rock, for 140.0 feet to the c::mmou South comer of said Lots 4 and 5 and a point on the North line of the previously rncndoned. Fast—Welt alley; tlicn.cc North 88 degrees 50 minutes 28 =onds West and along the South line of Lots 4, 3, 2 and 1. Honry. Mcl rose Addition to the City of Little Rack and the North line of previously mentioned East Went 33ley for 196.0 feet to the Point of Berp=rng containing 0.6299 acres, more or less, now platted ag Tract C of Park Plaza Addition, Little Rack. Pulaski County, Arkansas as recorded in Plat Retard C-519, records of Pulaski County, Arkansas. --coatinued— Doc## 2000027337 Exhibit "A" ---continued Tract 4. (Developer Tract -Fee simple) A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Ranic 13 West. which included "9" Street and Arthur Street, closed by City 0FLittIe Rock Ord inaoca No. 1 1.439 and No. 3 1.061, and Parts 4f Lots 14, 15 and 16, Henry Meirose Addition to the Ciry of Little Rock, all king in Pulaski Counry, Arkansas, more paniculariy described as follows: From the Southeast corner of the said Nonhcasi Quan�r of the Northeast Quarter, run thencc North 88 degrees 38 minutes 23 seconds West and along the South I:ne o f he said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Stmt (of 60 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line Of west Markham Street and tha Point of Begin - g, said point being the Southeast corner of the Dillard Department Stores, inc., tract; the= North 01 degrees 21 minutes 37 se=nds East for 194.91 feet; thence North 88 degrees 38 minutes 23 seconds West for 160.36 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard Department Stores, Inc.; thence North 01 degrees 24 minutes 36 seconds East and along the East wall and East wall projected North for 594.02 fact to the North line of an East-West alley aad a point on the South line of Lot 11, Henry Meiroae Addition to the City of Little Rock; chance South 88 degrees 50 minutes 28 seconds East and along the South line of Lots 11, 12 and 13, Henry Meirose Addition to the City of Little Rock and the North line of the East-West alley for 114.11 feet to the Southeast comer of said Lot 13; thence North 00 degrees 29 minutes East and along the East line of said Lot 13 and the West right of way line of Arthur Street for 26.12 feet to a point; thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the West right of way line of University Avenue (of 80 foot width) and 40.0 feet West: of the East line of the Northeast Quarter of the Northeast Quarter, thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quattar of the Northeast Quarter for 55.00 feet; thm= North 89 degrees 03 minutes 32 seconds West for 200.00 feet; thence South 01 degrees 21 minutes 37 seconds West for 200.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 59.44 feet; thence South 01 degrees 26 minutes 04 seconds West for 368.75 feet; thence North 88 degrees 38 minutes 23 seconds West for 69.86 feat; thence South 01 degrees 21 minutes 37 swands West for 150.00 feet; thence South 88 degrees 38 minutes 23 seconds East for 143.81 feet; thence North 01 degrees 21 minutes 37 seconds East for 129.01 feet; thence South 88 degrees 39 minutes 23 seconds East for 200.00 fact to the West right of way line of University Avenue and a point 40.0 feet West of the East line of the Northeast Quarter of the Northeast Quarter; thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 122.36 feet to the P.C. of a curve to the light whose radius is 29.36 feet and whose delta angle is 91 degrees 03 minutes 53 seconds; thence along the Arc of said curve for 46.66 feet (Chord bearing and distance of South 45 degrees 39 minutes 59 seconds West 41.91 feet) to the P.T. of said curve and a point on the North right of way line of West Markham Street (at this point the distance Pram the centerline of West Markham Street and from the South line of the Northeast Quarter of the Northeast Quarter is 51.0 feet; thence North 88 degrees 38 minutes 23 seconds West acid along the North right of way Line of West Markhar<t Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 160.00 feet to the P.C. of a curve to the lcfl whose radius is lO 1.U0 feet and delta angle of 37 degrees 25 minutes 51 secunda; thence along the arc of said curve and North right of way line of West Markham Street for 65.98 feet (chord bearing and distance of South 72 degr= 226 minutes 51 secoads West 64.82 feet) the P.T. of said curve and a point 30.0 feet North of the South line of the Northeast Quarter of the '4nrtheast Quarter. thence North con 88 degrees 38 minutes 23 seconds West and along the North right of way lira --continued- Doc## 2000027337 Exhibit "A" ---continued of West :Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 359.15 feet to the Point of Beginning, less and except part of the previously mentioned East-West alley and a part of Arthur Street more particularly deacribed as follows: Beginning at the Southeast corner of Lot 13, Henry Meirosc Addition to the City of Little Rock; thence North 00 degroes 29 minutes East and along the East line of said Lot 13 and the West right of way line of Arthur Street tar 26.12 feet; thence South 89 degrees 03 minutes 32 seconds East for 15.33 feet (deed) 17.67 feet (measured); thence South 00 degrees 36 minutes 17 seconds West for 46.18 feet; thence North 88 degrees 50 minutes 28 seconds West for 128.55 feet; thence North 01 degrees 24 minutes 34 seconds East for 20.0 feet to the North line of the East-West alley; thence South 98 degrees 50 minutes 28 seconds East for 114.11 feet to the Point of Begitming, containing 9.5841 acres including the alley and Strout and 9.5154 acres excluding the alley and Street, now platted as Tract E of Park Placa Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat record C-519, records of Pulaski County, Arkansas. Doc# 20000217337 EXMBIT A-1 LEGAL DESCRIPTION - EASEMENT PARCELS Park Plaza Mall, Little Rock Arkansas Thane certain casernemts, righis and privileges of use for pedestrian ud vehicular ingress, egress. parking, and other purposes as set forth in, and crmcd under and by virtue of that cw-Wn ConsinxEion, Operaziou and Reciprocal Easement Agredn= dated De=embcr 15. 1986. by and among Construction Devel❑pm, Incorporated; Dillard Deparnnent Storm, Inc.; and Herring-Maruhon Mason Parmcmi ip H; 111 ed in the aMci. land retards of Pulaski Cottaty, Arkansas, on December 31, 1986, as instrument 86-82744, as amended , modified and supplementod by that certain First Amendment to Construction, Operation and Reciprocal Easement Agreement effective Dcember 31, 1986, by and among Construction Developers, incorporated; Dillard Departraent Stores, Inc.; and Herring-Marathan Masters Partnership 8, filed in the official land records Of Pulaski County, Arksasm an July 27, 1989 as lnstruument No. 88-39542, which easements, rights and privileges benetit the lmd described in Exhibit A hereto, and burden the following described land: [See legal description attached hereto and made a part hereof, consisting of 3 Pagett] Tract 5 (Easement): TOGETHER WITH rights Of ingTm and egress as set forth in that certain Consmicriors. C pernaro and Rxipmcal ER.sernvmt ASrnnrnent recorded u Imr=r_nt No. 86-82744 and amended by First Am.eru meet to Construction, Qprration and Reciprocal Easement Agrc=cnt rocorded as fnstrument No. 88-39542 over and across the Following described land:: A part of the Nonh_-a t Quarter of tho Northeast Quarter, Section 1, Township 1 North, Range 13 West, which includes a portion of "B" Sty clased by City of Little Rock, Ordhuunce No. 11,439 and Lona 7 Lhr❑ugh 13 and Lots 14 through 26, inclusive, Henry Meirose Addition w the City of Lithe Rock, aiI being in Pulaski County, Arkansan, more particularly described as follows: From the Southeast carrier of the said Northeast Quarter of rbc Northeast Quarter, nxn them North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northium Quarter and the centerline of Wert Markham Street (of 60 foot width) for 651.67 feet; th]ettca North 01 dngraw 21 minutes 37 seconds East for 30.0 feet w the North right of way line Of West Mukham Strxt end the Point of Beginning; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feet; thence North 01 degrees -21 minutes 37 seconds East for 42.0 foot; thence North 88 degrees 38 minutes 23 seconds West Cor 250.64 feet; thence North 00 degrees 29 minutes East for 169.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way line of Mr.Ki lfiy Street (of 30.0 float width) and a paint 15.0 foot East of the West line of the Nost.hemn Quarter of the Northeast Quarter, theme North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West tine of the Northeast Quarter of the Northeast Quarter for 556.51 feet to the Northwest corner of Lot 26, Henry Mziroae Addition to the City of Little Rock (as recorded in Plat Book 1. Page 62) aril the Southwest caner of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northam Quarter of the Northaut Quarter for 20.0 feet to the Southwest corner of Lot 1, Henry Meirose Addition And the Northwest corner of the East-West alley; thence South 88 degrees 50 minutes 29 -seconds East and along the South line of Lott 1, 2, 3, 4, 5, and 6, Henry Meirose Addition tatbe City of Little Rack and the North line of tho East-West alley fnr 294.00 feet to the common South corner of Lots 6 and 7, Henry Meirose Addition to the City of Little Rock; thence North 00 degrees 29 minutes East and along the common line of said Lots 6 and 7 for 140.00 feet to the common North corner of said Lots 6 and 7 and a point on the South right of way line of "C" Street (varying width right of way); thence South 88 degrees 50 minutes 28 seconds East and along the North line of Lots 7, 9, 9, 10, 11, 12 and 13, Henry Meirose Addition to the City of I-ittlo Rock and the South right of way line of "C" Street for 336.50 feet to the Northeast corner of said Lot 13 and the West tight of wiry be of Arthur Street; thence South 00 degree& 29 minutes West &W along the West right of way line of Arthur Street 140.00 feet to the Southeast corner of Lot 13, Hcrtry Mairose Additlem to tiro City of Little Rack, and a point on the East-West alloy previously mentioned; thaace North 99 dograes 50 rrtinut= 28 seconder West and &long the South liar of Lot& 13, 12 and 11, Henry Meirose Addition to etre City of Little Rock and along the North line of said East -Wast alley for l 14.11 feet to a point which is in line with the Eart wall of a two story brick building occupied by Dillard Department Stores, Inc., titerticc South 01 degrxs 24 minute& 36 soconds West and along the East wall and East wall line projected both North and South for 594.02 feet to a point; then= South 88 degrt= 38 minutes 23 9econd9 East for 160.36 feet to a point; thence South 01 degrees 21 minutes 37 sacondA Went for 194.81 fret to the Point of 134aniug; lean and except the East-West alley (oC20 Foot width) running through Henry Mc Addition to the City of Little Rack, rnore particularly dnscn-bed as follows; 13eginnog at the Noathweat corner —continued— Exhibit "A- l"---condnnuxi of Lot 25, Henry .V airose Addition to the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest corner of an alley (of 20 foot width) running in an East-West direction. thence North M degrom 29 minutes East and along the East right of way line of Mc iWey Strcct and pamUel with the West cine of the Northeast Quarter of the Nor heaat Quarter for 20.0 feet to the Northwest comer of the alley and the Southwest comer of Lot 1, HenryMelrose Addition; thence South 88 degrees 50 minutes 28 seconds East and along the North line Of said East-West alley and the South Ifne of Lata 1, 2.3. 4.5.6.7, 8, 9, 10 and 11, HenryMcirasc Addition to the City of Utdie Rock, 516.39 feat; thence South 01 degrees 24 minutes 36 seconds West for 20.00 feet to a point on the North line oPLot 16, Henry Meirose Addition to the City of Little Rock and a point on the South line of said East-West alley; thence North 88 degrees 50 minutes 28 seconds West and along the North line of Lots 16 through 28, inclusive, Henry Mcirose Addition to the City of Little Rock and the South line of said East-West alley for 516.07 feet to the Point of Beginning, LESS AND EXCEPT Part of Tract D, Park Plaza Addition in the City of Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C at Page 519, being more particularly described as follows: Beginning at the Northwest comer of the Tract A, Paris Plaza Addition; thence North 00 degrees 29 minutes 00 seconds East along the existing But right -of --way line of McKinley Street 183.00 feet; thence 05 degrees 10 minutes 05 seconds East along the proposed East right-of-way line of McKinley Street 184.17 feet; thence North 88 degrees 40 minutes 09 seconds West 18.14 feet to the point of beginning, containing 10.0577 acres, including East-West alley and 9.8207 acres, excluding the alley, now platted as Tract B and Part of Tract D of Park Plaza Addition, Little Rack, Pulaaki County, Arkansas, as recorded is PIU Book C-519, records of Pulaski County, Arkansas. Tract 6 (Easement): TOGETHER WITH rights of ingress and egress as set forth in that certain Consttvction, Operation, and Reciprocal Easement Agreement recorded as instrument No. 86-82744 and amended by First Amendment to Construction, Operation and Reciprocal Easement Agreement recorded as Instrument No. 88-39542, over and across the following described lands: A part of the Northeast Qua= of the Northeast Quarter, Socrion 1. Township l Nortb, Range 13 West, Pu13ski County, Arkansas mate psrticuLVjy described as follows; From the Southeast corner of the said Northeast Qusirter of the Northeast Quarter, n m th== North 88 deg'eea 38 minutes 23 seconds Nest and along the South line of the said Nordie t Qturt= of the Northeast Quaxtar and the centerline of West Markha:m Street (of 60 feet width) for 651.67 fort; the= North 01 degieea 21 minutes 37 seconds East for 3!].0 feet to the North r1_8ht of way line of West MWkhun Street; dunce North 01 degrees 21 minutes 37 seconds East for 194.81 feat; thence North 88 dagrm 38 minutes 23 seconds West for 160.36 fest to a point which is in line with the East wall of a two story brick building occupied by Dillard Depmr= t Stof+ea. Im., thence North 01 degrees 24 minutes 36 seconds East and along the East will projected North for 594.02 fees to the North line of an East- West alley and a pout on the South line of Lot 11, Henry Meimse Addition to the City a Little Rock; th.=c South 88 degrees 50 minutes 28 seconds Eari and along the South line of Lou 11, 12 and 13. Henry Meimse AAdition to the City of Little Rock. Pulaski Countyxs , Askaa , and the North lire of the East-West alley for —continued Exhibit "A -l" ---continued 114.11 feet to the Southeast comerof said Lot 13; thence North 00 degrees 29 minutes East and along the Fast line of said Lot 13 and the West right of way line of AnhVr Strxt for 26.t2 feet to a point; tb=Ce South 89 degrcce 03 minutes 33 seconds East for 637.63 feet to the West right ofway line of Universiry Avenue (of 80 foot width) and 40.0 feet West of the East line of the Northeast Qu4rter of the Northeast Quarter; thence South and along the West right of way line of Univemiry Avenue anti parulleI with the East I i M of the Northeast Quar= of the Norrhew Quarter for 55.00 to the Point of Beginning; ihawa North 89 degram 03 minutes 32 seconds West for 200.00 feet; theme South 01 degrees 21 mini, 37 seconds West for 200.00 feet; thence North 99 degrees 38 minutes 23 seconds West for 59,44 feet; then co South 01 degrees 26 minuus 04 seconds West for 368.75 feat; thenca North 88 degrees 38 minutes 23 seconds West for 69.86 feet; thence South 01 degraea 21 minutes 37 seconds West for 150.00 feet; thence South 88 dep-acs 38 minutes 23 seconds East for 143.81 foot; thence Notch 01 degrees 21 minutes 37 seconds East for 129.01 feat; thence South 88 degrees 38 minutes 23 seconds East for 200.00 feet to the West right of way line of University Avenue; thence North and along the Wert right of way lana of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 591.37 feet to the Point of Beginning. containing 3.7949 acres, more or less, now platted tts Tract F of Paris Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat Record C- 519, records of Pulaski County, was. Doc# 2000027337 EXHIBIT B MORTGAGOR'S CERTIFICATE The undersi--ned is the of the general partner of (the "Mortgagor") and has made due investigation as to the matters hereinafter set forth and does hereby certify the following to induce FIRST UNION NATIONAL BANK, (the "Mortgagee") to, and does hereby request that Mortgagee, advance the aggregate sum of $ (the "Disbursement") [from the Replacement Reserve or Repair and Remediation Reserve or Environmental Reserve] to the Mortgagor pursuant to the terms of that certain Mortgage and Security Agreement, dated as of _, 2000, between the Mortgagee and the Mortgagor (together with any amendments, modifications, supplements and replacements thereof or therefor, the "Mortgage"), dated pursuant to that certain Disbursement request which is being submitted to the Mortgagee. (Capitalized terms used and not otherwise define shall have the respective meanings given to them in the Mortgage.) 1. No default beyond any applicable notice and/or grace period exists under the Mortgage or under any of the other Loan Documents. 2. The [Repairs, Deferred Maintenance or Environmental Work] relative to the Disbursement have been delivered or provided to Mortgagor and are properly, completely and permanently installed on or about the Mortgaged Property or otherwise properly completed, as applicable. 3. All of the statements, invoices, receipts and information delivered in connection with the Disbursement request being submitted to the Mortgagee in connection herewith are true and correct as of the date hereof, and the amount requested in said Disbursement request accurately reflects the precise amounts due and payable during the period covered by such Disbursement request. All of the funds to be received pursuant to such Disbursement request shall be used solely for the purpose of reimbursing the Mortgagor for items previously paid or otherwise paying third parties for work or services completed pursuant to the provisions of Section 1.8 of the Mortgage. 4. Nothing has occurred subsequent to the date of the Mortgage which has or may result in the creation of any lien, charge or encumbrance upon the Premises or the Improvements or any part thereof, or anything affixed thereto or used in connection therewith, or which has or may substantially and adversely impair the ability of the Mortgagor to make any payments of principal and interest on the Note or the ability of the Mortgagor to meet its obligations under the Mortgage. 5. None of the labor, materials, overhead or other items of expense specified in the Disbursement request submitted herewith has previously been the basis of any Disbursement request by the Mortgagor or any payment by the Mortgagee and, when added to all sums previously disbursed by Mortgagee on account of the [Deferred Maintenance, Repairs or Environmental Work], do not exceed the costs of all [Deferred Maintenance, Repairs or DOCSN Y1:67' ?3.5.l3 8233-775 s32 69 Doc# 2OOOO27337 VV14TRiT R-1 PERMITTED TITLE EXCEPTIONS All streets and public rights-of-way. 2. All applicable laws. ordinances, rules. regulations. codes, orders and requirements of any federal. state. or local uovernmental authority thereunder now in effect. 3. .All general taxes not due and payable as of the date hereof: 4. All special assessments for Little Rock Sanitary Sewer System not due and payable as of the date hereof. 5. State of facts shown on map or plat of surrey entitled ALTA/ACSM Land Title Survey Park Plaza Mall Little Rock. Pulaski County. Arkansas dated 2-15-00. last revised 3-23- 00. prepared by Ben Kittler. Jr.. Arkansas Professional Land Surveyor No. 568. bearing; No. 50 -01M -13W-0-01-110-60-0568. consisting of two pages. 6. Right of \vav easement in favor of City of Little Rock. Arkansas. for the use and benefit of the Little Rock Municipal Water Works: recorded in Book 784 at Paae 139. records of Pulaski Countv. Arkansas. 7. Right of way easement in favor of Cite of Little Rock. Arkansas, for the use and benefit of the Little Rock Municipal Water Works: recorded in Book 1018 at Page 47. records of Pulaski County. Arkansas. 8. Restrictions. reservations and conditions contained in Plat and Bill of Assurance recorded in Plat Book C at Page 519 and Bill of .Assurance recorded as Document No. 88-37459. records of Pulaski County. Arkansas. 9. Unrecorded lease agreement by and between Herring -Marathon Master Partnership B and Morrison Incorporated d/b/a Ruby Tuesday: a Short Form thereof being executed April 23, 1988, filed May 24, 1988. recorded as Document No. 88-26227. and related assignment and assumption of Lease executed May 2. 1995, and recorded July 25, 1995, as Document No. 95-42300, records of Pulaski County. Arkansas. 10. Unrecorded lease agreement by and between Herring -Marathon Master Partnership B and Luby's Cafeterias, Inc.. a Short Form thereof being executed December 1, 1987, filed February 3, 1988, recorded as Document No. 88-88-4855, records of Pulaski County, .Arkansas. 11. Right of way easement in favor of City of Little Rock, Arkansas and Corporation Dedication Deed Incorporated therein. recorded as Document No. 93-63651, records of Pulaski County, Arkansas. 12. Right of xvay easement in favor of City of Little Rock, Arkansas and Corporation Dedication Deed Incorporated therein: recorded as Document No. 93-63652, records of Pulaski County, Arkansas. j Page f of 2 13. Construction. Operation and Reciprocal Easement Agreement dated December 15. 1986. by and among Construction Developers, Incorporated. Dillard Department Stores. Inc. and Herring -Marathon Masters Partnership B. filed in the official land records of Pulaski Countv, Arkansas on December 31. 1956 as Instrument 86-82744, as amended, modified and supplemented by that certain First Amendment to Construction. Operation and Reciprocal Easement Agreement effective December 31. 1986 by and among Construction Developers. Incorporated. Dillard Department Stores. Inc. and FIcrTing- Marathon Masters Partnership B, filed in the official land records of Pulaski County. Arkansas on July 27. 1989 as Instrument No. 88-39542, and related assignment and assumption of Lease executed May 2. 1995, and recorded July 25. 1995, as Document No. 96-13164 and Assignment of Reciprocal Easement Agreement recorded as Document No. 96-68743, records of Pulaski Countv. Arkansas. .1.97923.1 72011/0 12 72 Page 2 of 2 N '-i i i Doc# 2000027337 EXHIBIT C DESCRIPTION COST Exterior Repairs $ 4,700.00 Roofing Repairs $ 9,570.00 Parking/Paving $ 1,650.00 Amenities (Stair Railin ) Repairs $ 7,500.00 Miscellaneous (Fire Sprinkler System) $ 6,000.00 TOTAL $29,420.00 X125% = $36,775.00 UUCSNY1:03735.13 8233-775 S32 71 Doc# 2000027337 EXHIBIT D "Permitted Investments" shall mean any one or niore of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Mortgagor, any servicer, REMIC Trustee or any of their respective affiliates: (i) direct obligations of, or obligations fully guaranteed as to payment of principal and interest by, (a) the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America, or (b) FHLMC, FNMA, the Federal Farm Credit System or the Federal Home Loan Banks provided such obligations at the time of purchase or contractual commitment for pui-chase are qualified by the Rating Agencies as a Permitted Investment hereunder as evidenced in writing; (ii) fully FDIC -insured demand and time deposits in or certificates of deposit of, or bankers' acceptances issued by, any bank or trust company, savings and loan association or savings bank, provided that the commercial paper and longi term unsecured debt obligations of such depository institution or trust company have the highest rating available for such securities by the Rating Agencies, or such lower rating as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency as evidenced in writing; (iii) repurchase obligations with respect to any security described in clause (i) above entered into with a depository institution or trust company (acting as principal) described in clause (ii) above; (iv) general obligations of or obligations guaranteed by any State of the United States or the District of Columbia receiving the highest long- term unsecured debt rating available for such securities by the Rating Agencies, or such lower rating as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency as evidenced in writing; DOCSNYI :673735.13 8233-775 S32 72 ,.0 (v) securities bearing interest or sold at a discount that are issued by any corporation incorporated under the laws of the United States of America or any State thereof or the District of Columbia and is rated by the Rating Agencies in their highest longi term unsecured rating categories at the time of such investment or contractual commitment providing for such investment; provided, however, that securities issued by any such corporation will not be Permitted Investments to the extent that investment therein will cause the then outstanding principal amount of securities issued by such corporation and held as part of the Central Account to exceed 20% of the aggregate principal amount of all Permitted Investments held in the Central Account; (vi) commercial or finance company paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) that is rated by the Rating Agencies in their highest short-term unsecured debt rating available at the time of such investment or contractual commitment providing for such investment, and is issued by a corporation the outstanding senior long-term debt obligations of which are then rated by the Rating Agencies in their highest rating available in their short-term and long- term unsecured debt ratings, or such lower rating as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency as evidenced in writing; (vii) guaranteed reinvestment agreements acceptable to the Rating Agencies issued by any bank, insurance company or other corporation rated in the highest long-term unsecured rating levels available to such issuers by the Rating Agencies throughout the duration of such agreements, or such lower rating as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency as evidenced in writing; (viii) units of taxable money market funds, which funds are regulated investment companies, seek to [)OC'SNY1:67: 73 5. 13 8233-775 S32 73 -J maintain a constant net asset value per share and -� invest solely in obligations backed by the full faith and credit of the United States, which funds have been designated in writing by the Rating Agencies as Permitted Investments with respect to this definition; and (ix) if previously confirmed in writing to the REMIC Trustee, any other demand, money market or time deposit, or any other obligation, security or investment, that may be acceptable to the Rating Agencies as a permitted investment of funds backing securities having ratings equivalent to their initial rating of the Certificates; Provided, however, that no instrument or security shall be a Permitted Investment if (y) such instrument or security evidences a right to receive only interest payments or (z) the right to receive principal and interest payments derived from the underlying investment provide a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. DOC'SNY1:6773 .13 8233-775 S32 74 Doc# 2000027337 E3►HIBIT E INTERCREDIJOR ACR ENIE 'T INTERCREDITOR AGREEMENT (this "Aereement"), dated as of , 2000, between PARK PLAZA MALL, LLC, a Delaware limited liability company, as mortgage lender (together with its successors and assigns, the "Fir ga Lender"), and a as mezzanine lender (together with its successors and assigns, the "Mezzanine Lender") RECITALS WHEREAS, pursuant to a Mortgage and Security Agreement, dated as of April , 2000 (as amended, supplemented or otherwise modified from time to time, the "First Mortgage Loan Agreement"), made by Park Plaza Mall, LLC, a Delaware limited liability company as mortgagor (the "Company"), in favor of First Mortgage Lender, as mortgagee, and as evidenced by a Promissory Note of even date therewith (the "First MgIlgage "), the First Mortgage Lender has provided financing in the original principal amount of $42 Million to the Company secured by the property owned by the Company and described on Exhibit A hereto (the Cap rogertry") (the First Mortgage Note and the First Mortgage Loan Agreement together with all ' other documents and instruments evidencing and/or securing the First Mortgage Note, are hereinafter collectively referred to as the "first Mortgage Loan Documents" and all obligations of the Company to First Mortgage Lender now existing or hereafter arising, due or to become due, under the First Mortgage Note and the First Mortgage Loan Documents are hereinafter collectively referred to as the "First Mortgage Loan Liabilities"); WHEREAS, Mezzanine Lender is the owner and holder of a Note in the original principal amount of $ (the "Mezzanine Note"), dated the date of this Agreement, made by Park Plaza 1, LLC, a Delaware limited liability company (together with its successors and assigns, the "Mezzanine_ Borrower"), payable to the order of Mezzanine Lender; and WHEREAS, [To be conformed to reflect pledge of membership interest of Park Plaza 2, LLC by Park Plaza 1, LLC] Mezzanine Lender has entered into (i) a Loan Agreement, dated the date of this Agreement, between Mezzanine Borrower and Mezzanine Lender (as amended, supplemented or otherwise modified from time to time, the "Mezzanine Loan Ac -eement" ); (ii) a Pledge Agreement, dated the date of this Agreement, by each of Mezzanine Borrower and ("Stock Owner"), for the benefit of Mezzanine Lender (the "Pledge Agreement"), which provides for (A) a pledge of Mezzanine Borrower's regular membership interest in the Company ("Pledged Membership Interest") and (B) a pledge of the Stock Owner's ownership of the stock of , a (the "C-Qmpany Managing Member'; and all of such stock being the ("Pledged Stock"), which owns a 1% managing membership interest in the Company; and (iii) a Mezzanine Deposit Agreement, dated the date of this Agreement, among the Company, Mezzanine Borrower and Mezzanine Lender (the "Me za e Deposit Agreement"; the Mezzanine Note, Mezzanine Loan Agreement and Mezzanine Deposit Agreement, together with all other documents and instruments evidencing and securing the Mezzanine Note, are hereinafter collectively referred to as the "Mezzanine Loan Dncurnents" or the "Mezzanine Loan"; and all obligations of the Mezzanine Borrower to the Mezzanine Lender now existing or hereafter arising, due or to become due, under the Mezzanine Note and the Mezzanine Loan Documents are hereinafter collectively refereed to as the " anine Loan Liabilities"). NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Consent to Mezzanine Goan. First Mortgage Lender hereby acknowledges and agrees that Mezzanine Lender is making the Mezzanine Loan to Mezzanine Borrower. First Mortgage Lender hereby consents to Mezzanine Lender's making the Mezzanine Loan to Mezzanine Borrower, to the execution and delivery of the Mezzanine Loan Documents to Mezzanine Lender and to the liens and security interests created in favor of Mezzanine Lender by the Mezzanine Loan Documents. First Mortgage Lender hereby acknowledges and agrees that any conditions precedent to First Mortgage Lender's consent to mezzanine financing on the Property as set forth in the First Mortgage Loan Documents or any other agreements with Company are, as they apply to the Mezzanine Loan Documents or the making of the Mezzanine Loan, either satisfied or waived. N 2. Ratina Agency Confirmation. (a) If there are any securities representing beneficial interests in the First Mortgage Loan (the "t:.ellificates") outstanding, Mezzanine Lender shall not transfer any or all of its interest in the Mezzanine Loan or exercise any rights it may have under the Pledge Agreement or any other Mezzanine Loan Document to obtain title to, or sell, or transfer title to, all or any part of the Mezzanine Collateral (as defined in section 2(b) below), whether pursuant to a sale governed by the applicable uniform commercial code or otherwise, unless First Mortgage Lender has received written confirmation from each of Standard & Poor's Ratings Services ("S P"), Moody's Investors Service, Inc., Duff & Phelps Credit Rating Co. and Fitch IBCA, Inc. or any other nationally recognized statistical rating organization who have at the time in question actually issued a current rating of such Certificates ("Rating Agency") that such transfer (and a transfer of the Mezzanine Collateral to such transferee) will not result in a qualification, downgrade or withdrawal of the ratings assigned by the Rating Agency to the Certificates. Notwithstanding the foregoing, Mezzanine Lender shall have the right to (i) transfer all or any portion of the Mezzanine Loan to a Permitted Institutional Transferee (as defined below) and/or (ii) exercise any rights it may have under the Pledge Agreement or any other Mezzanine Loan Document to obtain title to, or sell, or transfer title to, all or any portion of the Mezzanine Collateral so long as the transferee of the Mezzanine Collateral is a Permitted Institutional Transferee, in either case with respect to clause (i) or (ii) above without having to obtain a confirmation from the Rating Agencies. Furthermore, if a Rating Agency consents to a transfer of the Mezzanine Loan to a particular person or entity (such transferee, an " ve -2- .x Transferee"), no further Rating Agency approval shall be required for a transfer of the Mezzanine Collateral to such Approved Transferee. "Permitted tituti nal ra sferee" means (i) an affiliate of Mezzanine Lender, (ii) "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended (other than a broker/dealer), (iii) an insurance company, bank, savings and loan association, trust company, commercial credit corporation, pension plan, pension fund or pension fund advisory firm, mutual fund or other investment company, governmental entity or plan, a real estate investment trust (or the trustees thereof) or a corporation qualifying as such, the shares of beneficial interest of which are traded on a National Securities Exchange, as defined in the Securities Exchange Act of 1934, as amended, or an institution substantially similar to any of the foregoing, in each case under this clause (iii) having at least 5250,000,000 in capital/statutory surplus or shareholder's equity and at least $600,000,000 in total assets, and being experienced in making commercial loans; (iv) any entity owned and controlled by any one or more institutions meeting the criteria in clause (iii), (v) any lender listed on Exhibit B, attached hereto and made a part hereof, or (vi) an Approved Transferee. (b) If there are any Certificates outstanding and S&P is providing a rating on ' the Certificates, Mezzanine Lender shall not exercise any rights it may have under the Mezzanine Loan Documents, including, without limitation any right under the Pledge Agreement to obtain title to the Pledged Stock (collectively [and together with any other collateral securing the Mezzanine Loan], the "Mez ani a lateral"), unless Mezzanine Lender has received the prior written consent of the servicer of the First Mortgage Loan, which consent shall be deemed given } if Mezzanine Lender qualifies as a Permitted Institutional Transferee, as said term is defined in paragraph 2(a) above. In the event Mezzanine Lender exercises its rights under the Mezzanine Loan Documents to obtain, or sell, the title to all or any portion of the Mezzanine Collateral, the Mezzanine Lender (or the purchaser of such interests at a UCC sale) shall deliver to such servicer such certificates, opinions (covering such subjects, including nonconsolidation) and documentation as shall be reasonably requested by such servicer. (c) If there are Certificates outstanding, Mezzanine Lender shall not exercise any rights to terminate the manager of the Property (the anager") and approve a replacement Manager therefor and execution of any related management agreement, unless (a) the r replacement Manager is, under the standards set forth in paragraph 1.30 of the First Mortgage Loan Agreement, qualified to act as the manager of the Property, and (b) First Mortgage Lender shall in its discretion, reasonably exercised, have approved such replacement Manager. (d) Mezzanine Lender promptly shall notify First Mortgage Lender of any intended action relating to the Mezzanine Loan which would require confirmation by the Rating Agencies and shall cooperate with First Mortgage Lender in obtaining such confirmation. First Mortgage Lender shall, upon request of Mezzanine Lender, use reasonable efforts to obtain written confirmation from each Rating Agency that a requested or proposed action by the Mezzanine Lender will not result in a qualification, downgrade or withdrawal of the then -current ratings assigned by the Rating Agency to the Certificates. -3- (e) In the event Mezzanine Lender or any purchaser at a UCC sale obtains title to the Mezzanine Collateral pursuant to and in accordance with the provisions of this Agreement, First Mortgage Lender Hereby acknowled�ces and agrees that any transfer or n to such assumption fee in the First Mortgage Loan Docuntebnieach lorbdefault under the First e waived as a oMortgage transfer and any such transfer shall not constitute a <� Loan Documents or result in the acceleration of the First Mortga,e Note. (fl If there are no Certificates outstanding, Mezzanine Lender may not transfer the Mezzanine Loan, or any part thereof, or exercise any rights it may have under the Mezzanine Loan Documents to obtain title to, or sell or transfer title to, all or any portion of the Mezzanine Collateral without first obtaining the approval of the First Mortgage Lender, except, in either case, if such transfer or sale is to a Permitted Institutional Transferee. 3, uhordination: In urance Proceeds and ondemnation: Con tructive Trust. (a) Mezzanine Lender acknowledges and agrees that (i) the Mezzanine Loan in right to the is and shall remain in all respects subject andsubordinate andaall of its terms dand provisions andrst to Mortgage Loan, its lien on the Property and coli any modifications, consolidations, extension or renewals thereof and to any increases therein E-esulting from advances to protect or preserve the lien of the First Mortgage Loan Documents on the Property, (ii) no tenant under any lease of any portion of the Property will be made a party defendant in any foreclosure of the Mezzanine Collateral, nor will any other action be taken in connection with such foreclosure which would have the effect of terminating any such lease, and and (iii) no portion of the accounts, accounts receivable,Collaterails of the Property shall be collected in connection with the foreclosure of the Mezzanine (b) In the event of a casualty to the buildings or improvements constructed on the Property or a condemnation or taking under a Leieider Shall have first and prior minent domain of the Property, nterestlin buildings or improvements thereon, First Mortgage and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the "Award"), provided that if the amount of the Award is in excess of all amounts due under the First Mortgage Loan Liabilities, such excess Award shall be paid to or held by First Mortgage Lender (or any other person), as a distribution from the Company to the Mezzanine Borrower and for the benefit of Mezzanine Lender unless other parties (other than the Company and its Affiliates) have claimed the right to such awards or proceeds, in which case the First Mortgage Lender shall only be required to provide prompt written notice to the Mezzanine Lender of such excess Award and such claims by other parties. Notwithstanding the foregoing, in the event of a casualty or condemnation, First Mortgage Lender shall release the Awards from any such event to Company if and to the extent required by the terms and conditions of the First Mortgage Loan Documents in order to repair and estore theDocumenPs.operty in accordance with Awards made availabletho terms and provisions of the First Mortgage Ln Company for the repair or restoration of the Property shall not be subject to attachment by Mezzanine Lender to the extent used for such purpose. -4- (c) In the event Mezzanine Lender receives any payment or other distribution of any kind or character from the Company or with respect to the Property (other than (i) with respect to funds payable to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, or (ii) with respect to voluntary prepayments of all or any portion of the Mezzanine Loan at a time when no Event of Default exists with respect to the First Mortgage Loan Documents), including with respect to Awards pursuant to Section 3(b) hereof, such payment or other distribution shall be received and shall be held by Mezzanine Lender in trust for First Mortgage Lender and promptly turned over by Mezzanine Lender to First Mortgage Lender upon demand therefor. 4. Amendments to Loan Documentation: Mezzanine Barr wer Organizational Documents. (a) Notwithstanding any provision in the Mezzanine Loan Documents, First Mortgage Lender shall have the right to enter into, execute and agree to modify, amend, consolidate, spread, restate or waive any provision of the First Mortgage Loan Documents (including amending the First Mortgage Loan Documents in order to effectuate a defeasance of the First Mortgage Loan) without obtaining the consent of the Mezzanine Lender, provided no such modification, amendment, consolidation, spreader, restatement or waiver shall (i) increase the principal amount secured by the First Mortgage Loan, (ii) increase the interest rate payable under the First Mortgage Loan, (iii) provide for the payment of any additional interest, kicker or similar equity feature, (iv) modify the maturity date of the First Mortgage Loan (except that First Mortgage Lender may extend the maturity date of the First Mortgage Loan in connection any work-out or other surrender, compromise, release, renewal, or indulgence relating to the First Mortgage Loan), (v) spread the lien of the First Mortgage Loan to encumber any additional collateral, (vi) cross -default the First Mortgage Loan with any other indebtedness, (vii) make any amendment, modification or supplement to that certain Cash Management Agreement by and between the Company and First Mortgage Lender that is dated of even date with the First Mortgage Note which adversely affects the Mezzanine Lender, or (viii) adversely affects in any material respect the rights and interests of Mezzanine Lender under the Mezzanine Loan Documents. Notwithstanding the foregoing, any amounts funded by First Mortgage Lender under the First Mortgage Loan Documents as a result of (A) the making of any protective advances or other advances by First Mortgage Lender expressly permitted by the terms of the First Mortgage Loan Documents, or (B) interest accruals or accretions and any compounding thereof (including default interest) shall not at any time be deemed to contravene this Section 4(a). (b) First Mortgage Lender shall deliver to Mezzanine Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the First Mortgage Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by First Mortgage Lender) within five (5) business days after any of such applicable instruments have been executed by First Mortgage Lender. -5- (c) Mezzanine Lender shall have the right to modify, amend, consolidate, spread or restate any provision of the Mezzanine Loan Documents without obtaining the consent of the First Mortgage Lender; provided no such modification, amendment, consolidation, spreader, restatement or waiver shall (i) increase the principal amount secured by the Mezzanine Loan, (ii) increase the interest rate payable under the Mezzanine Loan, (iii) provide for the payment of any additional interest, kicker or similar equity feature, (iv) modify the maturity date of the Mezzanine Loan (except that Mezzanine Lender may extend the maturity date of the Mezzanine Loan in connection any work-out or other surrender, compromise, release, renewal, or indulgence relating to the Mezzanine Loan), (v) spread the lien of the Mezzanine Loan to encumber any additional collateral, (vi) cross -default the Mezzanine Loan with any other indebtedness, or (vii) adversely affect in any material respect the rights and interests of First Mortgage Lender under the First Mortgage Loan Documents, (viii) pledge the regular membership interests of Borrower owned by Park Plaza 2, LLC or Park Plaza 3, LLC, or (ix) materially increase the economic obligations of Mezzanine Borrower under the Mezzanine Loan Documents. Notwithstanding the foregoing, any amounts funded by Mezzanine Lender under the Mezzanine Loan Documents as a result of (A) the making of any protective advances or other advances by Mezzanine Lender expressly permitted by the terms of the Mezzanine Loan Documents, or (B) interest accruals or accretions and any compounding thereof (including default interest) shall not at any time be deemed to contravene this Section 4(c). (d) Mezzanine Lender shall deliver to First Mortgage Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Mezzanine Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Mezzanine Lender) within five (5) business days after any of such applicable instruments have been executed by Mezzanine Lender. (e) Mezzanine Lender shall consent to the amendment or modification of the Company's organizational documents upon request by the First Mortgage Lender in order to satisfy reasonable requests made by any Rating Agency in connection with the issuance of the Certificates; provided that same does not materially and adversely affect the rights and interests of Mezzanine Lender under the Mezzanine Loan Documents. 5. Curing. Subject to the terms of Section 6, the Mezzanine Lender shall have the right, but not the obligation, (a) to cure an "Event of Default" by the Company under the First Mortgage Loan Agreement (subject to any right of the Company to contest an Event of Default under the First Mortgage Loan Agreement), and (b) to satisfy any Liens (as defined in the First Mortgage Loan Documents), claims or judgments against the Property, in either case, subject to the Company's right to contest such matters under the First Mortgage Loan Agreement. The Mezzanine Borrower shall reimburse the Mezzanine Lender on demand for any and all costs incurred by the Mezzanine Lender in connection with curing such an Event of Default by the Company under the First Mortgage Loan or satisfying any Liens, claims or judgments against the Property permitted hereunder. W 6, Notices of eiault and Cure. (a) Mezzanine Lender shall, simultaneously with delivery to the Company, ID give First Mortgage Lender copies of any notices given to Mezzanine Borrower under the age of Mezzanine Loan Documents of "Events of Default" or notices cdefault' orsthat with the `Event of Defaults under time and failure to cure, would result in the occurrence of Qiv inQ such notices to Mezzanine the Mezzanine Loan Documents, simultaneously tiv ith Borrower. (b) First Mortgage Lender, simultaneously with delivery to the Company, shall give Mezzanine Lender copies of all (i) notices given to Company under the First Mortgage e, the Loan Documents of "Events of Default, (11) notices of events default'Worh`Even of Default"the passage of givinggiving of notice, or both, may result in the occurrence o tdefaults.rtgaue the First Mortgage Loan Documents, and (iii) notice o securedand/orguaranteed by l�e First ayme Lender shall not accelerate the indebtedness evidenced, Mortgage Loan Mortgage Loan Documents, and it shall not pursue` any ediurem wrinder en noF notice default at the Documents, unless the Mezzanine Lender shall have given time and in the manner specified herein and shall have der theto cure or cause to be cured such Fi First Mortgage Loan Documents, default within the cure period for such default, If any, u rovided the foregoing shall not be or within five (5) days after notice of any payment default, p construed to contravene the provisions of the First Mortgage Loan Documents with respect to late payment charges and default interest. The cure rights Lenderpfor rovided the Company or any n this Section 6(b) and Section 5 shall not be applicable in the event the Mezzanine person or entity owned or controlled by the Company. (c) Mezzanine Lender shall be bound by any approvals, consents or waivers made by First Mortgage Lender to the extent First Mortgage Lender has the right to approve, consent to or waive any matter pursuant to and in accordance with the provisions of the First Mortgage Loan Documents. 7, Ter minat ori. This Agreement shall terminate upon full and final payment of any that all rights of Mezzanine Lender and all amounts due under the First Mortgage Loan, provided thedMezzanine Loan have been paid m hereunder shall automatically terminate at such time full. g, Miscellaneous. (a) Successors a d si fin. This Agreement shall be binding upon, and shall inure to the benefit of, Mezzanine Lender and First Mortgage Lender and their respective successors and assigns, whether immediate or remote. First Mortgage Lender and the Mezzanine Lender agree, and as a condition to assignment of the First Mortgage Loan or the Mezzanine Loan their assignees shall agree, that this Agreement will be assigned to all future assignees of the First Mortgage Loan or the Mezzanine Loan (as the case maybe). -7- (b) No Wai�yer by First Morte Lender or Njezzanine Lender. First Mortgage Lender shall not be prejudiced in its rights under this Agreement by any act or failure to act by Company or Mezzanine Lender, or any non-compliance of Company or Mezzanine Lender with any agreement or obligation, regardless of any knowledge thereof which First Mortgage Lender may have or with which First Mortgage Lender may be charged; and no action of First Mortgage Lender permitted hereunder shall in any way affect or impair the rights of First Mortgage Lender and the obligations of Mezzanine Lender under this Agreement. No delay on the part of First Mortgage Lender in the exercise of any rights or remedies shall operate as a waiver thereof; and no single or partial exercise by First Mortgage Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon First Mortgage Lender except as expressly set forth in a writing duly signed and delivered on behalf of First Mortgage Lender. Mezzanine Lender shall not be prejudiced in its rights under this Agreement by any act or failure to act by Company, Mezzanine Borrower, or First Mortgage Lender, or any non-compliance of Company, Mezzanine Borrower, or First Mortgage Lender with any agreement or obligation, regardless of any knowledge thereof which Mezzanine Lender may have or with which Mezzanine Lender may be charged; and no action of Mezzanine Lender permitted hereunder shall in any way affect or impair the rights of Mezzanine Lender and the obligations of First Mortgage Lender under this Agreement. No delay on the part of Mezzanine Lender in the exercise of any rights or remedies shall operate as a waiver thereof; and no single or partial exercise by Mezzanine Lender of any right or remedy shall preclude other right or remedy; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon Mezzanine Lender except as expressly set forth in a writing duly signed and delivered on behalf of Mezzanine Lender. (c) FLirther Assurances. (i) Mezzanine Lender shall execute such further documents or instruments and take such further action as First Mortgage Lender may reasonably require from time to time to carry out the intent of this Agreement. (ii) First Mortgage Lender shall execute such further documents or instruments and take such further action as Mezzanine Lender may reasonably require from time to time to carry out the intent of this Agreement. (d) Notices. Any notice, demand or other communication which any patty may desire or may be required to give to any other party shall be in writing, and shall be deemed given (i) if and when personally delivered, (ii) upon receipt if sent by a nationally recognized overnight courier addressed to a party at its address set forth below, or (iii) on the third business day after being deposited in United States registered or certified mail, postage prepaid, addressed to a party at its address set forth below: am If to First Mortgage Lender: If to Mezzanine Lender: Any party hereto may change the address at which notices hereunder are required to be given to such party by notice to the other parties in accordance herewith. (e) struction and Into rotation of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or be invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (f) Amendments and Waivers. Neither this Agreement nor any terms hereof may be amended, modified or waived other than by a written agreement executed by the party against which such amendment, modification or waiver is sought to be enforced. (g) C'otinterparis. This Agreement may be executed in execution counterparts by the signatories hereto and each such counterpart shall have the force and effect of an original. (h) Third Pan Bene jciarv. Neither the Company, the Mezzanine Borrower, nor any other person shall be deemed a third party beneficiary of this Agreement. SIGNATURES COMMENCE ON THE FOLLOWING PAGE IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above. as First Mortgage Lender By: Name: Title: as Mezzanine Lender By: Name: Title: Attached: Exhibit A - Legal Description Exhibit B - Approved Mezzanine Lenders -10- STATE OF ) ss: COUNTY OF ) This instrument was acknowledged before me on the. by . the on behalf of said therein set forth. STATE OF ss: COUNTY OF Notary Public day of 19—, of , a for the uses and purposes My Commission Expires: Printed or Typed Name of Notary This instrument was acknowledged before me on the by the on behalf of said therein set forth. 493127.6 72011/91383 Notary Public _ day of 19_, of I a for the uses and purposes My Commission Expires: Printed or Typed Name of Notary -11- Doc## 2000027337 EXHIBIT A LEGAL DESCRIPTION [Attached] 200005553; 88/69/8808 89:33:16 AN Filed A Rerorded in Official Records of CAROLYN STALEY Rl1LASKI COUNTY CIRCUIi1COUNIY CLERK Fees $36.89 AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT f1}:t�4eac1. BETWEEN PARK PLAZA MALL, LLC AND FIRST UNION NATIONAL BANK DATED: AS OF JULY 1, 2000 PREPARED BY AND UPON RECORDATION RETURN TO: WINSTON & STRAWN 200 PARK AVENUE NEW YORK, NEW YORK 10166 ATTN: COREY A. TESSLER, ESQ- THIS INSTRUMENT AFFECTS REAL AND PERSONAL PROPERTY SITUATED IN THE STATE OF ARKANSAS, COUNTY OF PULASKI, SECTION RANGE 13 WEST, KNOWN BY THE STREET ADDRESSF16000 w. MAPRKHAM, LITTLE ROCK, ARKANSAS 72205 THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS UNDER THE NAMES OF MORTGAGOR, AS "DEBTOR", AND MORTGAGEE, AS "SECURED PARTY". 216220.6 AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT THIS AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT (the "Amendment") entered into as of the 1st day of July, 2000 by and between PARK PLAZA MALL, LLC, a Delaware limited liability company ("Borrower"), having an address at c/o First Union Real Estate Equity and Mortgage Investments, 551 Fifth Avenue, Suite 1416, New York, New York 10176 and FIRST UNION NATIONAL BANK, a national banking association ("Lender"), having an address at One First Union Center DC6, 301 South College Street, Charlotte, North Carolina 28288-0166. RECITALS: WHEREAS, on April 20, 2000 (the "Closing Date"), Lender made a loan to Borrower evidenced by a promissory note dated April 20, 2000 (the "Note") in the original principal amount of FORTY-TWO MILLION AND 00/100 DOLLARS ($42,000,000.00) (the "Loan") in connection with the property commonly known as Park Plaza Mall more particularly described on Exhibit A annexed hereto and made a part hereof (the "Premises"); and WHEREAS, concurrently with the execution and delivery of the Note, Borrower made and delivered to Lender, among other things; (i) that certain Mortgage and Security Agreement (the "Mortgage"), dated as of April 20, 2000 encumbering the Property, recorded as Document Number 2000027337 in the Public Records of Pulaski County, Arkansas; and (ii) all other documents executed and delivered by Borrower that evidence, secure, guarantee and otherwise relate to the Loan (which, together with the Mortgage, are hereinafter collectively referred to as the "Loan Documents"). WHEREAS, the current unpaid principal amount of the Loan is $41,961,102.59. WHEREAS, Lender has agreed to, among other things, increase the amount of the Loan evidenced by the Note by $500,000 from $41,961,102.59 to $42,461,102.59; and NOW, THEREOF, in consideration of the agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. All of the "WHEREAS" paragraphs set forth above are hereby incorporated in this Amendment. ti 216220.6 .. �.r 2. Borrower hereby ratifies and confirms all of its undertakings, obligations, agreements, guarantees and indemnities set forth in all of the Mortgage and hereby confirms that the Mortgage, and all of Borrower's undertakings pursuant thereto, remain in full force and effect. 3. Paragraph (1) of the Mortgage (page 4), shall be modified by the deletion of the phrase "Forty -Two Million and 00/100 Dollars ($42,000,000)", and the insertion of the phrase "Forty -Two Million Four Hundred Sixty -One Thousand One Hundred Two and 59/100 Dollars ($42,461,102.59)." 4. Exhibit B to Exhibit E to the Mortgage is marked "Exhibit B" and is attached hereto and made a part hereof. Through a scriveners error, said Exhibit B to Exhibit E to the Mortgage was inadvertently deleted from the counterpart of the Mortgage that was filed for record in Pulaski County, Arkansas as referred to above. Borrower and Lender hereby supplement the counterpart of the Mortgage that was so recorded to add said Exhibit B to Exhibit E to the Mortgage, effective as of April 20, 2000. -� 5. Except as modified and supplemented hereby, all of the terms, covenants, conditions, indemnities and agreements contained in the Mortgage shall remain unmodified and in full force and effect. 6. Hereafter (i) all references in the Mortgage and in the Loan Documents to the Mortgage shall be deemed to refer to the Mortgage, as modified by this Amendment, and (ii) all references in the Loan Documents to the term "Loan Documents" shall be deemed to include this Amendment. 7. Borrower hereby warrants and represents that (i) it has no defense, offset or counterclaim to its undertakings, obligations, agreements, guarantees or indemnities or the enforcement of Lender's rights and/or remedies under the Mortgage or this Amendment, (ii) the Mortgage as herein ratified and confirmed is a legal, valid and binding obligation of Borrower and (iii) the covenants, representations and warranties set forth in the Mortgage are true and correct in all material respects as of the date hereof. 8. Borrower hereby represents and warrants to the Lender that the execution, delivery and performance of this Amendment has been duly authorized by all necessary and proper action on the part of Borrower and that the execution, delivery and performance by Borrower of this, Amendment (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment, injunction or decree of any governmental authority to ,} which Borrower is subject, (ii) will not violate any provisions of the organizational documents of Borrower, and (iii) will not violate any provision of, or constitute a default under any contract, agreement or other undertakings to which Borrower is a party or which is binding upon any property of Borrower or upon any of Borrower's assets. 9. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction or prohibited or unenforceable as to any person or entity shall, as to such jurisdiction, person or entity, be ineffective to the extent of such prohibition or unenforceability, 3 216220.6 „J R without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction or as to any other person or entity. 10. THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, PROVIDED THAT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING, AND PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN THE MORTGAGED PROPERTY LOCATED IN SUCH STATE. 11. This Amendment shall be binding upon and shall inure to the benefit of Lender and Borrower and their respective successors and assigns. 12. BORROWER AND LENDER TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AMENDMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER, OR ANY OF ITS DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. 13. This Amendment may be executed in multiple counterparts, each of which, when so executed, shall be deemed an original, and all of which shall together constitute one and the same document, and shall be binding on the signatories; and the signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. 4 216220.6 IN WITNESS HEREOF, this Amendment has been duly executed by each of the undersigned as of the date first above written. PARK PLAZA MALL, LLC, a Delaware limited liability company By: Park Plaza 3, LLC a Delaware limited liability company, its general manager r By: 3�t— Name: Anne N. er Title: Executi ice President LENDER: FIRST UNION NATIONAL BANK, a national banking association By: W►��� Name: L -L.4 Title: �c l� c-� `r►j�S{�u� 316230.6 STATE OF NEW YORK ) ) SS COUNTY OF NEW YORK ) On this day personally appeared before me, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioner and acting, Anne N. Zahner, to me personally well known and who acknowledged that she was the Executive Vice President of Park Plaza 3, LLC, who is the general manager of Park Plaza Mall, LLC and was duly authorized as such to execute the foregoing instrument for, and in the name and behalf of said company further stated and acknowledged that she has so signed, executed and delivered said foregoing instrument for the consideration and purposes therein mentioned and set forth. WITNESS my hand and official seal on this /j day of July, 2000. Tml(te C ,i r (SEAL) NOTARY PUBLIC ROSALIE SOUDERS Notary Public, state of New York STATE OF NORTH CAROLINA ) No. OIS05697"900 ouafified in New York County ) SS Commission Expires February 2$, 20 COUNTY OF MECKLENBURG ) I, a Notary Public in and for said county and state do hereby certify that�l��n personally appeared before me this day and acknowledged that he is the txLvx:� A�S cmft of First Union National Bank, a national banking association, and that by authority duly given and as the act of First Union National Bank, the foregoing instrument was signed in its name by its and acknowledged the execution of the foregoing instrument. WITNESS my hand and official seal on this �30 day of July, 2000. R n � 4C2 R (SEAL) , fi�TAR PUBLI — Notary P! Uric 5i to of JAMES York No.OIJA60035p8 Certtif Qualified affe Filed in Pew York County Cornrnissian Expires 3I9.4.p. 6 216230.6 1) Pi 216220.6 EXHIBIT A LEGAL DESCRIPTION EXHIBIT "A" Tract 1 (Reserve Tract "A"—Fee simple) Doc# 20000515535 A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Range 13 West, Pulaski County, Arkansas, more particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feet; thence North 01 degree 21 minutes 37 seconds East for 42.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet to the Point of Beginning; thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence South 00 degrees 29 minutes West and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 210.60 feet to the North right of way line of West Markham Street and a point 30.0 feet North of the South line of the Northeast Quarter of the Northeast Quarter; thence South 88 degrees 38 minutes 23 seconds East and along the North right of way line of West Markham Street and parallel with the -+ South line of the Northeast Quarter of the Northeast Quarter for 150.11 feet; thence North 00 degrees 29 I minutes East for 42.0 feet to the Point of Beginning, containing 0.7256 acres, more or less. Now platted as part of Tract A, Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C, Page 519, records of Pulaski County, Arkansas. LESS AND EXCEPT Part of Tract A, Park Plaza Addition in the City of Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C at Page 519 being more particularly described as follows: BEGINNING at the Southwest corner of the said Tract A, Park Plaza Addition; thence North 00 degrees 29 minutes 00 seconds East along the existing East right of way line of McKinley Street 210.6 feet; thence South 88 degrees 40 minutes 09 seconds East along the North line of said Tract A, 18.14 feet; thence along the proposed East right of way line of McKinley Street the following three courses and distances: 1) South 05 degrees 10 minutes 05 seconds East 67.00 feet 2) South 00 degrees 10 minutes 54 seconds West 124.18 feet: and 3) South 44 degrees 29 minutes 51 seconds East 28.43 feet to the North right-of-way line of West Markham Street; thence along said North right-of-way line North 88 degrees 43 minutes 26 seconds West 45.49 feet to the point of beginning. j Tract 2: (Reserve Tract `B"—Fee simple) A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Range 13 West, Pulaski County, Arkansas, more particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60.0 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street; thence North 88 degrees 38 minutes 23 seconds West and along the North —continued— .J !M Exhibit "A" ---continued right of way line of West Markham Street for 264.08 feet to the Point of Beginning; thence North 01 degrees 21 minutes 37 seconds East for 42.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet; thence South 00 degrees 29 minutes West for 42.00 feet to the North right of way line of West Markham Street; thence South 88 degrees 38 minutes 23 seconds East and along the North right of way line of West Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 250.00 feet, more or less, to the Point of Beginning, containing 0.2413 acres, more or less, now platted as part of Tract D of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat recorded C-519, records of Pulaski County, Arkansas. Tract 3: (Reserve Tract "C"—Fee simple) Being Lots 1, 2, 3 and 4, Henry Meirose Addition to the City of Little Rock. Pulaski County, Arkansas, more particularly described as follows: from the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60.0 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feet; thence North 01 degrees 21 minutes 37 seconds East for 42.0 feet; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet: thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 15 0. 11 feet to the East right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast.Quarter for 556.51 feet to the Northwest corner of Lot 26, Henry Melrose Addition to the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest corner of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 20.0 feet to the Southwest corner of Lot 1, Henry Meirose Addition to the City of Little Rock (recorded in Plat Book 1, Page 62) and the Point of Beginning; thence continue North 00 degrees 29 minutes East and along the West line of said Lot 1 and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 140.0 feet to the Northwest corner of said Lot 1 and a point on the South right of way line of "C" street (of varying width); thence South 88 degrees 50 minutes 28 seconds East and along the North line of Lots 1, 2, 3 and 4, Henry Meirose Addition to the City of Little Rock and the South right of way line of "C" Street 196.0 feet to the common North corner of Lots 4 and 5, Henry Meirose Addition; thence South 00 degrees 29 minutes West and along the common line of Lots 4 and 5, Henry Meirose Addition to the City of Little Rock, for 140.0 feet to the common South corner of said Lots 4 and 5 and a point on the North line of the previously mentioned East—West alley; thence North 88 degrees 50 minutes 28 seconds West and along the South line of Lots 4, 3, 2 and 1, Henry. Meirose Addition to the City of Little Rock and the North line of previously mentioned East—West alley for 196.0 feet to the Point of Beginning containing 0.6299 acres, more or less, now platted as Tract C of Park Plaza Addition, Little Rock, Pulaski County, Arkansas as recorded in Plat Record C-519, records of Pulaski County, Arkansas. —continued— Exhibit "A" ---continued Tract 4: (Developer Tract—Fee simple) A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Range 13 West, which included `B" Street and Arthur Street, closed by City of Little Rock Ordinance No. 11,439 and No. 11,061, and parts of Lots 14, 15 and 16, Henry Meirose Addition to the City of Little Rock, all being in Pulaski County, Arkansas, more particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street and the Point of Beginning, said point being the Southeast corner of the Dillard Department Stores, Inc., tract; thence North 01 degrees 21 minutes 37 seconds East for 194.81 feet; thence North 88 degrees 38 minutes 23 seconds West for 160.36 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard Department Stores, Inc.; thence North 01 degrees 24 minutes 36 seconds East and along the East wall and East wall projected North for 594.02 feet to the North line of an East—West alley and a point on the South line of Lot 11, Henry Meirose Addition to the City of Little Rock; thence South 88 degrees 50 minutes 28 seconds East and along the South line of Lots 11, 12 and 13, Henry Meirose Addition to the City of Little Rock and the North line of the East-West alley for 114.11 feet to the Southeast comer of said Lot 13; thence North 00 degrees 29 minutes East and along the East line of said Lot 13 and the West right of way line of Arthur Street for 26.12 feet to a point; thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the West right of way line of University Avenue (of 80 foot width) and 40.0 feet West: of the East line of the Northeast Quarter of the Northeast Quarter; thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 55.00 feet; thence North 89 degrees 03 minutes 32 seconds West for 200.00 feet; thence South 01 degrees 21 minutes 37 seconds West for 200.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 59.44 feet; thence South 01 degrees 26 minutes 04 seconds West for 368.75 feet; thence North 88 degrees 38 minutes 23 seconds West for 69.86 feet; thence South 01 degrees 21 minutes 37 seconds West for 150.00 feet; thence South 88 degrees 38 minutes 23 seconds East for 143.81 feet; thence North 01 degrees 21 minutes 37 seconds East for 129.01 feet; thence South 88 degrees 38 minutes 23 seconds East for 200.00 feet to the West right of way line of University Avenue and a point 40.0 feet West of the East line of the Northeast Quarter of the Northeast Quarter; thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 122.36 feet to the P.C. of a curve to the right whose radius is 29.36 feet and whose delta angle is 91 degrees 03 minutes 53 seconds; thence along the Arc of said curve for 46.66 feet (Chord bearing and distance of South 45 degrees 39 minutes 59 seconds West 41.91 feet) to the P.T. of said curve and a point on the North right of way line of West Markham Street (at this point the distance from the centerline of West Markham Street and from the South line of the Northeast Quarter of the Northeast Quarter is 51.0 feet; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way Line of West Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 160.00 feet to the P.C. of a curve to the left whose radius is 101.00 feet and delta angle of 37 degrees 25 minutes 51 seconds; thence along the arc of said curve and North right of way line of West Markham Street for 65.98 feet (chord bearing and distance of South 72 degrees 26 minutes 51 seconds West 64.82 feet) the P.T. of said curve and a point 30.0 feet North of the South line of the Northeast Quarter of the Northeast Quarter; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line —continued— Exhibit "A" ---continued of West Markham Street and parallel with the South line of the Northeast Quarter of the Northeast .Quarter for 359.15 feet to the Point of Beginning, less and except part of the previously mentioned East-West alley and a part of Arthur Street more particularly described as follows: Beginning at the Southeast corner of Lot 13, Henry Meirose Addition to the City of Little Rock; thence North 00 degrees 29 minutes East and along the East line of said Lot 13 and the West right of way line of Arthur Street for 26.12 feet; thence South 89 degrees 03 minutes 32 seconds East for 15.33 feet (deed) 17.67 feet (measured); thence South 00 degrees 36 minutes 17 seconds West for 46.18 feet; thence North 88 degrees 50 minutes 28 seconds West for 128.55 feet; thence North 01 degrees 24 minutes 34 seconds East for 20.0 feet to the North line of the East-West alley; thence South 88 degrees 50 minutes 28 seconds East for 114.11 feet to the Point of Beginning, containing 9.5841 acres including the alley and Street and 9.5154 acres excluding the alley and Street, now platted as Tract E of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat record C-519, records of Pulaski County, Arkansas. DOC# 2000055535 EXHIBIT A-1 LEGAL DESCRIPTION — EASEMENT PARCELS Park Plaza Mall, Little Rock, Arkansas Those certain easements, rights and privileges of use for pedestrian and vehicular ingress, egress, parking, and other purposes as set forth in, and created under and by virtue of that certain Construction, Operation and Reciprocal Easement Agreement dated December 15, 1986, by and among Construction Developers, Incorporated; Dillard Department Stores, Inc.; and Herring -Marathon Masters Partnership B; filed in the official land records of Pulaski County, Arkansas, on December 31, 1986, as Instrument 86-82744, as amended, modified and supplemented by that certain First Amendment to Construction, Operation and Reciprocal Easement Agreement effective December 31, 1986, by and among Construction Developers, Incorporated; Dillard Department Stores, Inc.; and Herring -Marathon Masters Partnership B, filed in the official land records of Pulaski County, Arkansas on July 27, 1988 as Instrument No. 88-39542, which easements, rights and privileges benefit the land described in Exhibit A hereto, and burden the following described land: [See legal description attached hereto and made a part hereof, consisting of 3 pages] j J 19 Tract 5 (Easement): TOGETHER WITH rights of ingress and egress as set forth in that certain Construction, Operation, and Reciprocal Easement Agreement recorded as Instrument No. 86-82744 and amended by First Amendment to Construction, Operation and Reciprocal Easement Agreement recorded as Instrument No. 88-39542 over and across the following described lands: A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Range 13 West, which includes a portion of `B" Street closed by City of Little Rock, Ordinance No. 11,439 and Lots 7 through 13 and Lots 14 through 26, inclusive, Henry Meirose Addition to the City of Little Rock, all being in Pulaski County, Arkansas, more particularly described as follows: From the Southeast comer of the said Northeast Quarter of the Northeast Quarter; run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street and the Point of Beginning; thence North 88 degrees 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feet; thence North 01 degrees 21 minutes 37 seconds East for 42.0 feet; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet; thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 556.51 feet to the Northwest corner of Lot 26, Henry Meirose Addition to the City of Little Rock (as recorded in Plat Book 1. Page 62) and the Southwest corner of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 20.0 feet to the Southwest corner of Lot 1, Henry Meirose Addition and the Northwest corner of the East-West alley; thence South 88 degrees 50 minutes 28 seconds East and along the South line of Lots 1, 2, 3, 4, 5, and 6, Henry Meirose Addition to the City of Little Rock and the North line of the East-West alley for 294.00 feet to the common South corner of Lots 6 and 7, Henry Meirose Addition to the City of Little Rock; thence North 00 degrees 29 minutes East and along the common line of said Lots 6 and 7 for 140.00 feet to the common North corner of said Lots 6 and 7 and a point on the South right of way line of "C" Street (varying width right of way); thence South 88 degrees 50 minutes 28 seconds East and along the North line of Lots 7, 8, 9, 10, 11, 12 and 13, Henry Meirose Addition to the City of Little Rock and the South right of way line of "C" Street for 336.50 feet to the Northeast comer of said Lot 13 and the West right of way line of Arthur Street; thence South 00 degrees 29 minutes West and along the West right of way line of Arthur Street 140.00 feet to the Southeast comer of Lot 13, Henry Melrose Addition to the City of Little Rock, and a point on the East-West alley previously mentioned; thence North 88 degrees 50 minutes 28 seconds West and along the South line of Lots 13, 12 and 11, Henry Meirose Addition to the City of Little Rock and along the North line of said East-West alley for 114.11 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard Department Stores, Inc.; thence South 01 degrees 24 minutes 36 seconds West and along the East wall and East wall line projected both North and South for 594.02 feet to a point; thence South 88 degrees 38 minutes 23 seconds East for 160.36 feet to a point; thence South 01 degrees 21 minutes 37 seconds West for 194.81 feet to the Point of Beginning; less and except the East-West alley (of 20 foot width) running through Henry Meirose Addition to the City of Little Rock, more particularly described as follows: Beginning at the Northwest corner —continued— Exhibit "A-1"—continued of Lot 26, Henry Meirose Addition to the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest comer of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 20.0 feet to the Northwest corner of the alley and the Southwest corner of Lot 1, Henry Meirose Addition; thence South 88 degrees 50 minutes 28 seconds East and along the North line of said East-West alley and the South line of Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Henry Meirose Addition to the City of Little Rock, 516.39 feet; thence South 01 degrees 24 minutes 36 seconds West for 20.00 feet to a point on the North line of Lot 16, Henry Meirose Addition to the City of Little Rock and a point on the South line of said East-West alley; thence North 88 degrees 50 minutes 28 seconds West and along the North line of Lots 16 through 28, inclusive, Henry Meirose Addition to the City of Little Rock and the South line of said East-West alley for 516.07 feet to the Point of Beginning, LESS AND EXCEPT Part of Tract D, Park Plaza Addition in the City of Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C at Page 519, being more particularly described as follows: Beginning at the Northwest corner of the Tract A, Park Plaza Addition; thence North 00 degrees 29 minutes 00 seconds East along the existing East right-of-way line of McKinley Street 183.00 feet; thence 05 degrees 10 minutes 05 seconds East along the proposed East right-of-way line of McKinley Street 184.17 feet; thence North 88 degrees 40 minutes 09 seconds West 18.14 feet to the point of beginning, containing 10.0577 acres, including East-West alley and 9.8207 acres, excluding the alley, now platted as Tract B and Part of Tract D of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C-519, records of Pulaski County, Arkansas. Tract 6 (Easement): TOGETHER WITH rights of ingress and egress as set forth in that certain Construction, Operation, and Reciprocal Easement Agreement recorded as Instrument No. 86-82744 and amended by First Amendment to Construction, Operation and Reciprocal Easement Agreement recorded as Instrument No. 88-39542, over and across the following described lands: A part of the Northeast Quarter of the Northeast Quarter, Section 1, Township 1 North, Range 13 West, Pulaski County, Arkansas more particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60 feet width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way line of West Markham Street; thence North 01 degrees 21 minutes 37 seconds East for 194.81 feet; thence North 88 degrees 38 minutes 23 seconds West for 160.36 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard Department Stores, Inc.; thence North 01 degrees 24 minutes 36 seconds East and along the East wall projected North for 594.02 feet to the North line of an East- West alley and a point on the South line of Lot 11, Henry Meirose Addition to the City of Little Rock; thence South 88 degrees 50 minutes 28 seconds East and along the South line of Lots 11, 12 and 13, Henry Meirose Addition to the City of Little Rock, Pulaski County, Arkansas, and the. North line of the East-West alley for --continued— Exhibit "A-1"—continued 114.11 feet to the Southeast comer of said Lot 13; thence North 00 degrees 29 minutes East and along the East line of said Lot 13 and the West right of way line of Arthur Street for 26.12 feet to a point; thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the West right of way line of University Avenue (of 80 foot width) and 40.0 feet West of the East line of the Northeast Quarter of the Northeast Quarter; thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 55.00 to the Point of Beginning; thence North 89 degrees 03 minutes 32 seconds West for 200.00 feet; thence South 01 degrees 21 minutes 37 seconds West for 200.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 59.44 feet; thence South 01 degrees 26 minutes 04 seconds West for 368.75 feet; thence North 88 degrees 38 minutes 23 seconds West for 69.86 feet; thence South 01 degrees 21 minutes 37 seconds West for 150.00 feet; thence South 88 degrees 38 minutes 23 seconds East for 143.81 feet; thence North 01 degrees 21 minutes 37 seconds East for 129.01 feet; thence South 88 degrees 38 minutes 23 seconds East for 200.00 feet to the West right of way line of University Avenue; thence North and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 591.37 feet to the Point of Beginning, containing 3.7999 acres, more or less, now platted as Tract F of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat Record C- 519, records of Pulaski County, Arkansas. Doc# 2000055535 EXHIBIT B to EXHIBIT E TO MORTGAGE APPROVED MEZZANINE LENDERS 1. Allied Capital 2. CIBC World Markets 3. Finova Realty Capital 4. First Union National Bank 5. First Union Capital Markets 6. KeyBank 7. Fleet Financial Group 8. GE Capital Real Estate 9. Heller Financing 10. Summit Bank 11. First Union Real Estate Equity and Mortgage Investments 12. Starwood Financial 13. GMAC 14. Goldman Sachs/Whitehall 15. Mass Mutual 16. Charles Bank/Harvard Capital 17. Bank of America Credit Corp. DOCSNYI :669773 2 10653-5 RD2 8 216220.6 IV, tsxxxxxrxrrr■t■■■ •��r� G I R � �'• ,• U {. 't =• 0 �= 4 ■': O r � � w 7 T_ ot cls fir' } ;fir �.r17 DOCSNY 1:673415 4 3233-775 CAT 2000027338 04/21/2898 82:47:23 NM Filed & Recorded in Official Records of CAROLYN STALEY PULASKI COUNTY CIRCUIT/COUNTY CLERK Fees 549.99 PARK PLAZA MALL, LLC, as Assignor to FIRST UNION NATIONAL BANK, as Assignee ASSIGNMENT OF LEASES AND RENTS Date: APRIL24), 2000 PREPARED BY AND UPON RECORDATION RETURN TO: ORRICK, HERB-INGTON & SUTCLIFFE LLP 666 Fifth Avenue New York, New York 10103 Attn: Corey A. Tessler, Esq. Doc# 2000027339 ASSIGNMENT OF LEASES AND RENTS THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") made as of Apri120, 2000 by PARK PLAZA MALL, LLC, a Delaware limited liability company ("Assignor"), whose address is c/o First Union Real Estate Equity and Mortgage Investments, 551 Fifth Avenue, Suite 1416, New York, New York 10176, in favor of FIRST UNION NATIONAL BANK, a national banking association ("Assignee"), whose address is One First Union Center DC -6, 301 South College Street, Charlotte, North Carolina 28288. WITNESSETH: WHEREAS, Assignor has executed that certain Promissory Note (the "Note") dated of even date herewith, payable to the order of Assignee in the stated principal amount of FORTY- TWO MILLION AND 00/100 DOLLARS (S42,000,000.00); and WHEREAS, the Note is secured by that certain Mortgage and Security Agreement (the "Nlor zags") dated of even date herewith, from Assignor, to Assignee, encumbering that certain real property situated in the County of Pulaski, State of Arkansas, as more particularly described on Exhibit A attached hereto and incorporated herein by this reference, and all buildings and other improvements now or hereafter located thereon (collectively, the "Improvements") (said real property and the Improvements are hereinafter sometimes collectively referred to as the "Property"); and WHEREAS, Assignor is desirous of further securing to Assignee the performance of the terms, covenants and agreements hereof and of the Note, the Mortgage and each other document evidencing, securing, guaranteeing or otherwise relating to the indebtedness evidenced by the Note (the Note, the Mortgage and such other documents, as each of the foregoing may from time to time be amended, consolidated, renewed or replaced, being collectively referred to herein as the "Loan Documents"). NOW, THEREFORE, in consideration of the making of the loan evidenced by the Note by Assignee to Assignor and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby irrevocably, absolutely and unconditionally transfer, sell, assign, pledge and convey to Assignee, its successors and assigns, all of the right, title and interest of Assignor in and to: (a) any and all leases, licenses, rental agreements and occupancy agreements of whatever form now or hereafter affecting all or any part of the Property and any and all guarantees, extensions, renewals, replacements and modifications thereof (collectively, the "Leases"); and (b) all deposits (whether for security or otherwise), rents, issues, profits, revenues, royalties, accounts, rights, benefits and income of every nature of and from the Propertv, including, without limitation, minimum rents, additional rents, termination payments, forfeited DOCSN Y 1:673115 4 8233-77: CAT security deposits, liquidated damages following Event of Default (as hereinafter defined) and all proceeds payable under any policy of insurance covering loss of rents resulting from untenantability due to destruction or damage to the Property, together with the immediate and continuing right to collect and receive the same, whether now due or hereafter becoming due, and together with all rights and claims of any kind that Assignor may have against any tenant, lessee or licensee under the Leases or against any other occupant of the Property, any award or other payment which Assignor may hereafter become entitled to receive with respect to any of the Leases as a result of or pursuant to any bankruptcy, insolvency or reorganization or similar proceedings involving the tenants under such Leases, and any and all payments made by or on behalf of any tenant of any part of the Property in lieu of Rent (collectively, the "Rents"). TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns. IT IS AGREED that this Assignment is made upon the following terms, covenants and conditions: 1. Assignor represents, warrants and covenants to and for the benefit of Assignee: (a) that Assignor now is (or with respect to any Leases not yet in existence, will be immediately upon the execution thereof) the absolute owner of the landlord's interest in the Leases, with full right and title to assign the same and the Rents due or to become due thereunder; (b) that, other than this Assignment and those assignments, if any, specifically permitted in the Mortgage, there are no outstanding assignments of the Leases or Rents; (c) that no Rents have been anticipated, discounted, released, waived, compromised or otherwise discharged, except for prepayment of rent of not more than one (1) month prior to the accrual thereof, except as provided in the Leases or as disclosed in any tenant estoppel certificate previously delivered to Assignee; (d) that there are no material defaults now existing under any of the Leases by the landlord or tenant, and there exists no state of facts which, with the giving of notice or lapse of time or both, would constitute a default under any of the Leases by the landlord or tenant, except as disclosed in writing to .Assignee; (e) that Assignor has and shall duly and punctually observe and perform in all material respects all covenants, conditions and agreements in the Leases on the part of the landlord to be observed and performed thereunder, and (f) the Leases are in full force and effect and are the valid and binding obligations of Assignor, and, to the knowledge of Assignor, are the valid and binding obligations of the tenants thereto. 2. Notwithstanding that this instrument is a present, absolute and executed assignment of the Rents and of the Leases and a present, absolute and executed grant of the powers herein granted to Assignee, Assignor is hereby permitted, and is hereby granted a revocable license by Assignee, to retain possession of the Leases and to collect and retain the Rents unless and until there shall be an Event of Default under this Assignment, the Mortgage or the other Loan Documents. In the event of such Event of Default, the aforementioned license granted to Assignor shall automatically terminate without notice to Assignor, and Assignee may thereafter, without taking possession of the Property, take possession of the Leases and collect the Rents. Further, from and after such termination, Assignor shall be the agent of Assignee in collection of the Rents, and any Rents so collected by Assignor shall be held in trust by Assignor for the sole and exclusive benefit of Assignee, and Assignor shall, within one (1) business day after receipt of any Rents, pay the same to Assignee to be applied by Assignee as hereinafter set forth. Furthermore, from and after such Event of Default and termination of the aforementioned DOCSVY' 1:673415 4 8233-775 CAT license, Assignee shall have the right and authority, without any notice whatsoever to Assignor and without regard to the adequacy of the security therefor, to: (a) manage and operate the Property, with full power to employ agents to manage the same; (b) demand, collect, receive and sue for the Rents, including those past due and unpaid; and (c) do all acts relating to such management, operation, rental, leasing, repair improvement and alteration of the Property as Assignee in its reasonable judgment and discretion shall determine. Assignee may apply the Rents received by Assignee from the Property, after deducting the costs of collection thereof, including, without limitation, reasonable attorneys' fees and a management fee for any management agent so employed, against amounts expended for repairs, upkeep, maintenance, service, fuel, utilities, taxes, assessments, insurance premiums and such other expenses as Assignee incurs in connection with the operation of the Property and against interest, principal, required escrow deposits and other sums which have or which may become due, from time to time, under the terms of the Loan Documents, in such order or priority as to any of the items so mentioned as Assignee, in its reasonable business judgment, may determine. 3. Without limiting the rights granted hereinabove, in the event Assignor shall fail to make any payment or to perform any act required under the terms hereof and such failure shall not be cured within any applicable grace or cure period, then Assignee may, but shall not be obligated to, without prior notice to or demand on Assignor, and without releasing Assignor from any obligation hereof, make or perform the same in such manner and to such extent as Assignee may deem necessary to protect the security hereof, including specifically, without limitation, appearing in and defending any action or proceeding purporting to affect the security hereof or the rights or powers of Assignee, performing or discharging any obligation, covenant or agreement of Assignor under any of the Leases, and, in exercising any of such powers, paying all necessary costs and expenses, employing counsel and incurring and paying attorneys' fees. Any sum advanced or paid by Assignee for any such purpose, including, without limitation, reasonable attorneys' fees, together with interest thereon at the Default Interest Rate (as defined in the Note) from the date paid or advanced by Assignee until repaid by Assignor, shall immediately be due and payable to Assignee by Assignor on demand and shall be secured by the Mortgage and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Note. 4. This Assignment shall not operate to place responsibility for the control, care, management or repair of the Property upon Assignee, nor for the performance of any of the terms and conditions of any of the Leases, nor shall it operate to make Assignee responsible or liable for any waste committed on the Property by the tenants or any other party or for any dangerous or defective condition of the Property or for any negligence in the management, upkeep, repair or control of the Property. Assignee shall not be liable for any loss sustained by Assignor resulting from Assignee's failure to let the Property or from any other act or omission of Assignee in managing the Property, other than for any liability arising from the gross negligence or willful misconduct of Assignee. This Assignment shall not be construed as making Assignee a mortgagee in possession. Assignee is obligated to account to Assignor only for such Rents as are actually collected or received by Assignee. 5. Assignor shall and does hereby indemnify and hold Assignee harmless from and against any and all liability, loss, claim, demand or damage which may or might be incurred by reason of this Assignment, including, without limitation, claims or demands for security deposits DOCSNY I :673-415.4 8233-775 CAT from tenants of space in the Improvements deposited with Assignor except, to the extent actually delivered to Assignee and from and against any and all claims and demands whatsoever which may be asserted against Assignee 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 of the Leases, other than for any liability arising from the gross negligence or willful misconduct of Assignee, its agents, employees or contractors. Should Assignee incur any liability by reason of this Assignment or in defense of any claim or demand for loss or damage as provided above (other than by reason of the gross negligence or willful misconduct of Assignee, its agents, employees or contractors or material breach of a material provision of a Loan Document), the amount thereof, including, without limitation, costs, expenses and attorneys' fees, together with interest thereof at the Default Interest Rate from the date paid or incurred by Assignee until repaid by Assignor, shall be immediately due and payable to Assignee by Assignor upon demand and shall be secured by the Mortgage and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Note. 6. Assignor hereby irrevocably appoints Assignee as its attorney-in-fact which power of attorney is coupled with an interest by virtue of this Assignment and is irrevocable so long as any sums are outstanding under the loan evidenced by the Note to, from and after the occurrence of an Event of Default by Assignor hereunder or under any of the other Loan Documents and during the continuance thereof, do, make or perform any act, right or privilege which Assignee shall have under or by virtue of this Assignment. 7. Assignor covenants and agrees that Assignor shall not, without the prior written consent of Assignee, further pledge, transfer, mortgage or otherwise encumber or assign the Leases or future payments of Rents, except as otherwise expressly permitted by the terms of the Mortgage, or incur any material indebtedness, liability or other obligation to any tenant, lessee or licensee under the Leases, or permit any Lease to become subordinate to any lien other than the lien of the Mortgage. S. Assignor covenants and agrees that Assignor shall, at its sole cost and expense, appear in and defend any action or proceeding arising under, growing out of, or in any manner connected with the Leases or the obligations, duties or liabilities of the landlord or tenant thereunder, and if Assignor shall fail to do so, Assignee, at its option but without obligation, may do so. Assignor shall pay on demand all costs and expenses, including, without limitation, attorneys' fees, which Assignee may incur in connection with Assignee's appearance, voluntary or otherwise, in any such action or proceeding, together with interest thereon at the Default Interest Rate from the date incurred by Assignee until repaid by Assignor. 9. At any time, Assignee may, at its option, notify any tenants or other parties of the existence of this Assignment. Assignor does hereby specifically authorize, instruct and direct each and every present and future tenant, lessee and licensee of the whole or any part of the Property to pay all unpaid and future Rents to Assignee upon receipt of demand from Assignee to so pay the same, and Assignor hereby agrees that each such present and future tenant, lessee and licensee may rely upon such written demand from Assignee to so pay said Rents without any inquiry into whether there exists an Event of Default hereunder or under the other Loan Documents or whether Assignee is otherwise entitled to said Rents. Assignor hereby waives any right, claim or demand which Assignor may now or hereafter have against any present or future DOCSNY I b7,415 4 3233-775 CAT 4 tenant, lessee or licensee by reason of such payment of Rents to Assignee, and any such payment to Assignee shall discharge such tenant's, lessee's or licensee's obligation to make such payment to Assignor. 10. Assignee may take or release any security for the indebtedness evidenced by the by Note, may release any party primarily or secondarily liable respect the indebtedness i evi dnesds evedencede Note, may grant extensions, renewals or indulgences by the Note and may apply any other security therefor held by it to the satisfaction of any ithout prejudice to any of its rights hereunder or under any indebtedness evidenced by the Note w of the Loan Documents. 11. The acceptance of this Assignment and the collection of the Rents as herein xercis provided to exercise b shall be without prejudice to Assignee. The ent. andhe coilectionlof the Rents and ure thessignee of the rights granted Assignee in this Asstgnm application thereof as herein provided, shall not be considered a waiver by Assignee of any Event of Default under the Loan ssi Documents liable or prevent foreclosure under any of the LeUsesf Assignee hereby expressly nor shall such exercany liens on the Property ise make As.�s�nee is reserving all of its rights and privileges under the Ulorigage and the other Loan Documents as fully as though this Assignment had not been entered into. The rights of Assignee hereunder are may be cumulative and concurrent, may be pursued separately,ebsuccessivelyaeby Assignor that gether dthe exercise exercised as often as occasion therefor shall an g of any one or more of the rights pro4 ided for herein shall not be construed as a waiver of any of the other rights or remedies of Assignee, milaw ns Or inisfiedv or otherwise, so long as any obligation under the Loan Documents 12. All rights and obligations of Assignee hereunder shall inure to the benefit of and e of bind its successors and assigns; and shall para ar ll bind and benefit it successors and may be exercised by any eand assigns Assignee. All obligations and rights of Assitn and any subsequent owner of the aid rigPropert Asignuchnotiice the liability of Assignor agrees that if Assignee lto the notice to Assignor of an assignment of said rights. upon such assignee ofthe Assignee shall be immediate arida defense, ounter�iaimr wilor senot t -off to any t up any claim on against Assignee or any no asst -7 a brought by Assignee or any intervening assignee for any amounts due hereunder or for possession of or the exercise of rights with respect to the teases or the Rents. 13. It shall be an "Event of Default" hereunder (a) if any material representation or warranty made herein by Assignor is determined by Assigneeteo have bofpa alraph7 in any material respect at the time made, or (b) if Assignor provisions hereof. or (c) if any Event of Default (as defined in the Mortgage) under the Mortgage or any of the other Loan Documents shall occur. 14. If any provision under this Assignment or the application thereof to any entity, person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of his Assignment and the application of the provisions hereof to other entities, persons or t circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted by law. DOCS`+Y 1 67 5 8233-775 CAT 1 5. This Assignment may not be amended, modified or otherwise changed except by a written instrument duly executed by Assignor and Assignee. 16. This Assignment shall be in full force and effect continuously from the date hereof to and until the Mortgage shall be released of record, and the release of the Mortgage shall, for all purposes, automatically terminate this Assignment and render this Assignment null and void and of no effect whatsoever. This Assignment shall -continue and remain in full force and effect during any period of foreclosure with respect to the Property. 17. In case of a conflict between any provision of this Assignment and any provision of the other Loan Documents, the provisions of the Note or the Mortgage, if they shall be the conflicting other Loan Documents, shall prevail and be controlling. In case of a conflict between any provision of this Assignment and any provision of any Loan Document (other than the Note and the Mortgage), the provision selected by Assignee in its discretion shall prevail and be controlling. 18. All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be given and become effective as provided in the 1Vlort1 - 19. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING AND PROVIDED FURTHER THAT THE LAWS OF THE STATE N WHICH THE PROPERTY IS LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY, AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN THE PROPERTY LOCATED N SUCH STATE. 20. This Assignment may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Assignment may be detached from any counterpart of this Assignment without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Assignment identical in form hereto but having attached to it one or more additional signature pages. 21. In addition to, but not in lieu of, any other rights hereunder, Assignee shall have the right to institute suit and obtain a protective or mandatory injunction against Assignor to prevent a breach or to enforce the observance, of the agreements, covenants, terms and conditions contained herein. 22. Assignee shall, as a matter of absolute right, be entitled, upon application to a court of applicable jurisdiction, and without notice to Assignor, to the appointment of a receiver to obtain and secure the rights of Assignee hereunder and the benefits intended to be provided to Assignee hereunder. DOCSNY1:673.315 4 3233-775 CAT 23. Notwithstanding anything to the contrary contained in this Assignment, the liability of Assignor and its officers, directors, general partners, managers, members and principals for the indebtedness secured hereby and for the performance of the other agreements, covenants and obligations contained herein and in the Loan Documents shall be limited as set forth in the Note. 24. ASSIGNOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS ASSIGNMENT OR THE DEBT EVIDENCED BY THE NOTE OR ANY CONDUCT, ACT OR OMISSION OF ASSIGNEE OR ASSIGNOR, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH ASSIGNEE OR ASSIGNOR, IN EACH OR THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. 25. Assignee may sell, transfer and deliver the Loan Documents to one or more investors in the secondary mortgage market. In connection with such sale, Assignee may retain or assign responsibility for servicing the loan evidenced by the Note or may delegate some or all of such responsibility and/or obligations to a servicer, including, but not limited to, any subservicer or master servicer, on behalf of the investors. All references to Assignee herein shall refer to and include, without limitation, any such servicer, to the extent applicable. 26. If Assignee determines at any time to sell, transfer or assign this Assignment, the Note, the Security Instrument and the other Loan Documents, and any or all servicing rights with respect thereto, or to grant participations therein (the "Participations") or issue mortgage pass- through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the "Securities"), Assignee may forward to each purchaser, transferee, assignee, servicer, participant, investor, or their respective successors in such Participations and/or Securities (collectively, the "Investor") or any rating agency rating such Securities, each prospective Investor and each of the foregoing's respective counsel, all documents and information which Assignee now has or may hereafter acquire relating to the debt evidenced by the Note and to Assignor, any guarantor, any indemnitor and the Property, which shall have been furnished by Assignor, any guarantor or any indemnitor as Assignee determines necessary or desirable. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] DOCSNt' 1:67341; 4 3233-M CAT 7 'l 17 I�) J 11 IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and year first written above. DOCSN Y 1:67'415 4 8233-775 CAT ASSIGNOR: PARK PLAZA MALL, LLC, a Delaware limited liability company By: Park Plaza 3, LLC, a Delaware limited liability -company, its general manager By:'� • ��--, Name: Daniel P. Friedman Title: President 1 -1 j j State of Afkansas' " �ss. "'� l County of;r6�, ) %%/G On this day personally appeared before me, a Notary Public, within and for the County and State aforesaid, duly qualified, commissioned and acting, Daniel P. Friedman, to me personally well known and who acknowledged that he was the President of Park Plaza 3, LLC , who is the general manager of Park Plaza Mail, LLC and was duly authorized as such to execute the foregoing instrument for, and in the name and behalf of said company further stated and acknowledged that he has so signed, executed and delivered said foregoing instrument for the consideration and purposes therein mentioned and set forth. WITNESS my hand and official seal on this 19 Vi day of April, 2000, NOTARY P BLIC GARY D. UV . Notary Public, State of New Yore No. 41-5054632 Mallfied In Queens County Certificate Filed In Now York County Commission Expires Jan. 22, IUX"tiNl I os2681 I N':. AI Doc# 2000027338 EXHIBIT A LEGAL DESCRIPTION Tract 1 (Reserve Tract "A"—Fee simple) A part Of the Northeast Quarter of the Northeast Quarter, Section 1, Township l North. Range 13 West, Fulask i County. Arkansas, more particularly described as follows, From the Southeast corner ❑fthe said Northc'st Quarter of the Northeast Quarter, rut} thence North 88 degrees 38 minutes 23 seconds West and along the South Fine of the said Northeast Quarter of the Northeast Quarter and the centerline of W est Markham Strect (❑ f 60 foot width) for 651.67 feat; thence North 01 degrees 21 minutes 37 seconds East for 30.4 feet to the North right of way line of West Markham Street; thence North 88 degrees 38 minutes 23 saconds Wear and along the North right aFway lino of West Markham Street for 264.08 feel; thence North 01 dearer 21 minutes 37 seconds East for 42.00 feet; there North 88 degrees 38 minutes 23 seconds West for 250.64 feet to the Point of Beginning; thence North 04 degrcrs 29 minutes East for 168.54 fcct;'thrnce North 88 degrees 37 miaur a 06 seconds West for 150.11 feet to the Fast right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 fact Fast of the West line of the Northeast Quartet of the Northeast Quarter, thence South 00 degrees 29 minutes West and along the East right of way lino of McKinley Street and parallel with the West line aFthe Northeast Quarter of the Northeast Quarter for 210.60 feet to the Nosh tight of wsy line of West Markham Street and a point 3 0. 0 feet North of the South Linc of the North mst Quarter of the Northeeat Quarter; thence South 88 degrees 38 minutes 23 seconds East and along the North right of way ling of west Markham Street and parallel with the South line of the Northcsst Quarter of tete Northeast Quarter for 150.11 fart; thence North 00 degrees 29 minutes East for 42.0 feet to the Point of Regina g, containing 0.7256 acres, more or less. Now planod as part of Tract A, Parc Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in PIat Book C., Page 519, records of Pulaski County, Arkanitas. LESS AND EXCEPT Part of Tract A, Paris Plaza Addition in the City of Little Rock, Pulaski County, Arkansas, as recorded in Plat Book C at Page 519 being more particularly described as follows: BEGTNNTNG at the Southwest corner of the said Tract A, Paris Plaza Addition; thence North 00 degrees 29 minutes 00 seconds East along the existing Past right of way line of McKinley Strcet 210.6 feet; theses South 88 degrees 40 minutes 09 seconds East along the North Una of said'fract A, 18.14 feet; thence along the proposed East right of way line of McKinley Street the following three courses and distances: 1) South 05 degrees 10 minutes 05 seconds Basi 67.00 feet 2) South 00 degrees 10 minutes 54 seconds West 124.18 fact: and 3) South 44 degrees 29 minutes 51 seconds East 28.43 feet to the North right-of-way line of West Markham Street; thence along said North right-of-way line North 88 degrees 43 minutes 26 seconds West 43.49 feet to the point of beginning. Tract 2: (Reserve Tnet "B"—Foe simple) A part of the Northeast Quartet of the Northeast Quarter, Section 1, Township 1 North, Runge 13 West, Pulaski County, Arkansas, more particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, nen thence Notch 88 degrees 38 minutes 23 secaad9 Wert and along tine South line of the said Northeast Quarter of the Northeast Quarter and the cline of West Markham Street (of 60.0 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of way tine of West Markham Street. thence North 88 degrc= 38 minutes 23 seconds Weat and llionS the North —continued— Doc# 2000027333 Exhibit "A"—continued right of way line of West Markham Street for 264.08 feet to the Poim of Beginning; thence North 01 degrees 21 minutes 37 seconds Fit for 42.00 feet; thcace North 88 degr= 38 minutes 23 smoads West for 250,64 feet; dioace South 00 degrees 29 minutes West for 42.00 feet to the North right of way cine of West Markham Street; thence South 88 degrees 38 minutes 23 seconds East and along the North right of way line of West Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 250.00 foot, more or 1 eas, to the Point of Beginning, containing 0.2413 acres, more or less, now platted 'as part of Tract D of Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat recorded C-519, records of Pulaski County, Arkansas. Tract 3: (Reeervo Tract "C"—Fee simple) Being Lots 1, 2, 3 and 4, Hwy Meirose Addition to the City of Little Rock. Pulaski County, Arkansas, more particularly described as follows: from the Southeast comer of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 seconds West and along the South line of the said Northeast Quarter of the Northeast Quarter and the centerline of West Markham Street (of 60.0 Foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds Past for 30.0 feet to the North right of way line of West Markham Stroct; thence North 88 degrees 38 minutes 23 seconds Weal and along the North right of way line of West Markham Street for 264.08 feet; thence North 01 degrees 21 minutes 37 seconds East for 42.0 feet; thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet: thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way line of McKinley Street (of 30.0 foot width) and a point 15.0 feet East of the West line of the Northeast Quarter of the Northeast Quarter; thence North 00 degrees 29 minutes 134% and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 556.51 feet to the Northwest corner of Lot 26, Henry Meirose Addition to the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest corner of an alley (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes Bast and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 20.0 feet to the Southwest corner of Lo 1, Henry Meirose Addition to the City of Little Rock (recorded in Plat Book 1, Page 62) and the Point of Beginning; thence continue North 00 degrees 29 minutes East and along the West line of said Lot land paralle with she West line of the Northeast Quarter of the Northeast Quarter for 140.0 feet to the Northwest corner of said Lot 1 and a point on the South right of way lute of "C" street (of varying width); than Ce South B8 degrees 50 minutes 28 seconds East and along the North line of Lots 1, 2, 3 and 4, Henry Meirose Addition to the City of Little Rock and the South right of way line of "C, Street 196.0 feet to the coronion North corner of Lots 4 and 5, Hoary Meiroae Addition: th=ca South 00 degrees 29 minutra west and along the con=on line of Lots 4 and 5, Henry Meirose Addition to the City of Little Rock for 144.0 feet to the summon South comer of said Lots 4 raid 5 and a point on tlm North line of the previously mentioned East—Wept alley, dunce North 88 degrees 50 minutes 28 seconds West and along the South line of Lots 4, 3, 2 and 1. Henry. Meirose Addition tc the City of Little Rock and rho Notch ling of previously mentioned Eart Nest alley for 196.0 feet w the Point of Beginning containing 0.6299 acre's, more or less, now platted as Tract C of Patrk Playa Addition, Lurie Rock Pulaski County, Arkansas as retarded in Plat Retard C-519, records of Pulaski County, Arkansas. —conttnued— 1 Doc# 2000027338 Exhibit "A"—continued Tract 4: (Developer Tract—Pee simple) A part of theNortheast Quarter of the Northeast Quancr, Section 1, Township i North, Range 13 West, which included "B" Street and Arthur Street, closed by City oFLivle Rock Ordinance No. 1 1,439 and No. 1 1,061, and Puma of Lots 14, 15 and 16, Hmiry Meirose Addition to the City Of Little Rack, all being in Pulaski County, Arkansas, marc particularly described as follows: From the Southeast corner of the said Northeast Quarter of the Northeast Quarter, run thence North 88 degrees 38 minutes 23 sends West and along the South line of rhe said Northeast Quarter of the Northeast Quarter and the centerline a f West Markham Street (of 60 foot width) for 6 51.6 7 feet; thence North 01 degrees 21 minutes 37 seconds East far 30.0 Feet to the North right of way line of West Markham Strcat acid the Point of Beginning, said point being the Southeast comer of the Dillard Department Stores, in.c., tract; thence North 01 degrem 21 minutes 37 seconds East for 194.81 feet; thence North 88 degrees 38 minutes 23 srtconds West for 160.36 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard Department Stores, Trac.; thence North 01 degrces 24 rninut.es 3s seccods East and along the East wail and hast wail projected North for 594.02 feet to the North line of an East—West alley and a point on the South line of Lot 11, Henry Mr-irose Addition to the City of little Rock; chance South 88 degmes 50 minutes 28 seconds East and along the South line of Lots 11, 12 and 13, Hartry Meirose Addition to the City of Little Rock and the North kine of the East-West alley for 114.11 fent to the Southeast comer of said Lat 13; thence North 00 degrees 29 minutes East and along the East line of said Lot 1: and the West right of way line of Arthur Street for 26.12 feet to a point; thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the West right of way line of Univcrsity Avenue (of 80 foot width) and 40.0 fee West: of the East line of the Northeast Quarter of the Northeast Quarter, thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quartor of the Northeast Quarter for 55.00 feet; thence North 89 degrees 03 minutes 32 seconds West for 200.00 feet; thence South 01 degrees 21 minutes 37 seconds West for 200.00 feet; thence North 88 degrees 38 minutes 23 seconds West for 59.44 feet; thence South 01 degrees 26 minutes 04 seconds West for 368.75 feet; thence North 88 degrees 38 minutes 23 seconds West for 69.86 feet; thence South 01 degrees 21 minutes 37 weands West for 150.00 feet; thence South 88 degrees 38 minutes 23 seconds East for 143.81 feet; thence North 01 degrees 21 minutes 37 seconds East for 129.01 feet; thence South 88 degrees 38 minutes 23 seconds East for 200.00 feet to the West right of way line of University Avenue and a point 40.0 feet West of the East line of the Northeast Quarter of the Northewt Quarter; thence South and along the West right of way line of University Avenue and parallel with the East line of the Northeast Quarter of the Northeast Quarter for 122.36 feet to the P.C. of a curve to the light whose radius is 29.36 feet and whose delta angle is 91 degrees 03 minutes 53 seconds; thence along the Arc of said curve for 46.66 felt (Chord bearing and distance of South 45 degrees 39 minutes 59 seconds West 41.91 feet) to the P.T. of said curve and a point on the North right of way line of West Markham Street (at this pourt the distance from the centerline of West Markham Street and from the South line of the Northeast Quarte of the Northeast Quarter is 51.0 feet; thence Notch 88 degrees 38 minutes 23 seconds West and along the Norte right of way Line of West Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 160.00 feet to the P.C. of a curve to the left whose radius is ioi.uo feet and delta angle e 37 degrees 25 minutes 51 seconds; thence along the arc of said curve and North right of way line of West M rkham Strect for 65.98 feet (chord hearing and distance of South 72 degrees 26 minutes 51 seconds West 64.82 feet) the P. T. of said curve and a point 3 0. 0 feet North of the South fte oFthe Northeast Quarter of the Nfortheast Quarrcr. the=c North 88 degrees 38 minutes 23 seconds West and along the North right of way Linc —continued— Doc# 2000027338 Exhibit "A"—continw!d Of West -Markham Street and parallel with the South line of the Northeast Quarter of the Northeast Quarter for 359.15 feet to the Point of Beginning, le" and except part of the previously Mendoued F.a.9t-West alley and a part of Arthur Street more particulariy described ea follows: Beginning at the Southeast corner of Lot 13, Henry Meirose Addition to the City of Little Rack; thence North W degrees 29 minutes East and along tiro Cast lint Of said Lo 13 and the We -at right of way line of Arthur Street t❑r 26.12 feet; thence South 89 degrees 03 minutes 32 seconds Fast for 15.33 feet (deed) 17.67 feet (measured); thence -South 00 degrees 35 minutes 17 seconds West for 46,18 feet; thence North 88 degrees 50 minutes 28 seconds West for 128.55 feet; thence Noah 01 degrees 24 minutes 34 sexonda East for 20.0 feet to the North line of the Eau -West alley; thence South 88 degrees 50 minutes 28 seconds Fast for 114.11 feet to the Point of 134tming, conLAining 9.5841 acres including the alley and Stroot and 9.5154 acres excluding the alley and Street, aow platted as Tract E of Parc plata Addition, Little Rock, Pulaski County, Arkansas, as recorded in Plat record C-519, records of Pulaski County, Arkansas. Doc# 2000027338 EXHIBIT A-1 LEGAL DESCRIPTION — EASEMENT PARCELS Park Plaza Mall, Little Rock, Arkansas Those certain casements, ni&his and privileges of use for pedestrian and vehicular Ingre&a, egress, parking, and other Ptatposas as Act Forth in, and crested under and by virtue of that certain Construction, Operatiou and ReciprocaJ Earameot Agreem= dace Decrmba 15, 1986, by &ad am oil Construction iJtvelapersi, I =rPoratod; Ditl,srd Depa ment Storer, Inc.; and Herring -Marathon Masten Parmership H; f tad in Lha off►ci land records of Pulaakl County, Arkartau, on December 31, 1986, as instrumcm 86-82744, as amended , modified and supply nentnd by tW certain First Am=dinwt to Coasuvcdon. Operation and Reciprocal Easement Agre=cnt effective Decc nbcr 31, 1986, liy and among Construction Developers, Luorporatcd; Dillard Department Stores, I=; and Herring -Marathon Masters Parmers ip 9, Sled in the official land record Of Pulasid County, Arkansas on July 27, 1989 as Instrument No. 8a -3954Z which easements, rights and privileges b=ast Uwe laird described in Exhibit A hereto, and burl= the following described land: [See lepi description attached hereto and made a part hereo4 consiadn& of 3 rages] Tract 5 (Basement): TOGETHER WITH ri&bta of ingrea and egress as sat forth in that certain Cc►nnmction, Operation, and Reciprocal Easement Agreamestt recorded as Instrument No. 86-82744 and amended by First Annendment to Construction, Operation and Raciproc&I Esscmcnt Agreement recorded as Inmvment No. 88-39542 over and across the following described laadr. A part of the Northaut Quarter of tho Northeast Quarter, Secrion 1, Tow &hip I North, Range 13 West, which includes a portion of "B" Street closed by City of Little Rock, Ordiivace No. 11,439 and Lata 7 through 13 rani Lots 14 through 26, inclusive, Henry Meirose Addition to the City c Liitic Rock-, at being in Nlaa.ki County, Askansaa, more particularly desuibed as faliows: From the Southeast corner of the said Northeast Quarter of the Northraat Quarter, run thwr-e Narth 88 degrees 38 minutes 23 siecoads West and along the South line of the said North" :,¢: Quarter of thn NorthrM Quarter and die centerline of West Markttsm Street (of 60 fact width) for 651.67 feet; thence North 01 degrees 21 minutes 37 seconds East for 3 0. 0 feet to the North right of way lune of West Markham Sm=t and the Point of Beginning; thence North 98 degrew 38 minutes 23 seconds West and along the North right of way line of West Markham Street for 264.08 feet; dwea North 01 degrees -21 minutes 37 seconds East for 42.0 feat; thence North 88 degrees 38 minutes 23 seemkis West Car 250.64 feet; thence North 00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds West for 150.11 feet to the East rt&W of way lime of Mee inlet' Stroct (of 30.0 foot width) and a point 15.0 feat East of the West line of the Northeast Quarter of the Northeast Quarter, thence North 00 degrees 29 tuin>,ttes Pat sad along the East right of way line of McKinley Street and para.iiel with the West line of the Northeast Quarternf the Norrheast Quarter for 556.51 fact to the Northwest comer of Lot 26, Henry Mairose Addition to the City of Little Rock (as recorded in Plat Book 1. Page 62) and the Southwest canter of an allay (of 20 foot width) running in an East-West direction; thence North 00 degrees 29 minutes East and along the East right of way line of McKinley Street and parallel with the West line of the Northeast Quarter of the Northeast Quarter for 20.0 feet to the Southwest comer of Lot 1, Henry Melrose Addition and the Northwest corner of the Past -West alley; thence South 88 degrees 50 minutes 28 seconds East and along tho South line of Lots 1, 2, 3, 4, 5, and 6, Henry Meirose Addition to the City of Little Rack and the North line of tho Eat -Weal alley for 294.00 feet to the common South corner of Lots 6 and 7, Henry Meirose Addition to the City of Little Rock; thence North 00 degrees 29 minutes East and along the ca=nna line of said Lou 6 and 7 for 140.00 feet to the common North corner of said Lots 6 and 7 and it point on the South right of way line of "C" Street (varying width right of way): thence South 88 degre= 50 minutes 28 seconds Fast and along the North line of Lots 7, 8, 9, 10, 11, 12 and 13, Henry Meirose Addition to the City of Little Rock and the South right of way line of "C" Street for 336.50 feet to the Northeast corner of said Lot 13 and the Wen right of way line of Arthur Street; thence South 00 degrees 29 minutes West and along the West right of way line of Arthur Street 140.00 fest to the Southeast comer of Lot 13, Henry Mairow Addition to lite City of Little Rock, acrd a point on tha Ent -Wen alley previously mentioned; [hanca North 88 degrees 50 minute: 28 seconds Wen and slang the South lino of bats 13, 12 and 11, Henry Meirose Addition to the City of Little Rock and along the North line of said Fast -West alley for 114.11 feet to a point which is in line with the East wall of a two story brick building occupied by Dillard De-pammem Stores, Lw.; the= South 01 deg am 24 minutes 36 seconds West and along the Est wall and Fast wail Iine projected bath North and South for 594.02 feet to a point; theruca South 88 degrees 38 minuus 23 seconds East for 160.36 fent to a point; thence South O1 dagrma 21 minutes 37 acconds West for 194.81 feet to the Point of B4nz3in& ieaa and except the East -Wen alley (of 20 foot width) running through Henry Meirase Addition to the City of Littla Rock, mare particularly descn'bod as follows; Begianing at the Northwest corner —continued--