(d)            Mortgagor’s interest in all buildings and improvements of every kind and description now or hereafter erected or placed on the Real Estate (the “Improvements” ); all materials intended for construction, reconstruction, alterations and repairs of the Improvements (whether stored or located on site or stored off site), all of which materials shall be deemed to be included within the Property hereby conveyed immediately upon the delivery thereof to the Real Estate; all fixtures and articles of personal property now or hereafter owned by Mortgagor and attached to or used in connection with Real Estate and Improvements (and the lessee’s interest in any personal property leased by Mortgagor from third parties), including but not limited to all furniture and furnishings, apparatus, machinery, motors, elevators, fittings, radiators, gas ranges, mechanical refrigerators, awnings, shades, screens, office equipment, blinds, carpeting and other furnishings, and all plumbing, heating, lighting, cooking, laundry, ventilating, refrigerating, incinerating, air conditioning, central energy and sprinkler equipment and fixtures and appurtenances thereto; and all renewals or replacements of any of the foregoing, whether or not the same are or shall be attached to the Improvements; except that the foregoing shall not include any trade fixtures, personal property or moveable equipment owned by tenants occupying any part of the Property.  All of such personal property to be deemed to be real property and be a part of the realty.   This Mortgage is hereby deemed to be as well a security agreement as well as a mortgage for the purpose of creating hereby a security interest in the personal property securing the Indebtedness (hereafter defined in Section 3) for the benefit of the Mortgagee; and

 

(e)            all of the rents, issues, proceeds and profits accruing or to accrue from the Real Estate or arising from the use or enjoyment of all or any portion thereof or from any lease or agreement pertaining thereto; and all right, title and interest of Mortgagor in and to all leases of the Real Estate now or hereafter existing; including without limitation all deposits made thereunder to secure performance by the tenants of their obligations thereunder; and

 

(f)             all goodwill, trademarks, trade names, option rights, purchase contracts, books and records and general intangibles of Mortgagor relating to the Real Estate or the Improvements including, without limitation, all rights of Mortgagor under or with respect to all accounts, contract rights, instruments, chattel paper and other rights of Mortgagor for payment of money for property sold, rented or lent, for services rendered, for money lent, or advances or deposits made, and any other intangible property of Mortgagor related to the Real Estate or the Improvements; and

 

(g)            all rights, including all copyrights, of Mortgagor to plans and specifications, designs, drawings and other matters prepared for any construction on or renovation or alteration of the Real Estate and Improvements; and

 

(h)            all proceeds (including claims or demands thereto) of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including without limitation all proceeds of insurance (including unearned premiums) and condemnation awards including interest thereon,

 

subject, however, to liens securing that certain Credit Agreement dated as of May 5, 2008 (as amended from time to time), by and among Mortgagor, commerce Bank, N.A., as Agent, Issuing Bank and Swingline Lender, and the financial institutions party thereto, including that certain

 

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mortgage dated September 3, 2008 and recorded September 8, 2008 from Mortgagor to Commerce Bank, N.A., recorded under recording no. 200800019473.

 

2.              Security for Promissory Note; Indebtedness.   This Mortgage secures the payment of (a) the Subordinated Secured Promissory Note (“ Note” ) from Mortgagor to Mortgagee, dated this same date, in the original principal amount of Two Million and No/100 Dollars ($2,000,000.00); (b) all indebtedness and obligations arising under the provisions of this Mortgage; (c) all indebtedness and obligations arising pursuant to and any and all other agreements or assignments securing the Note (hereinafter collectively the “ Loan Documents” ); (d) all indebtedness and obligations arising pursuant to any instrument evidencing the advance of additional sums at Mortgagee’s sole option, by Mortgagee to Mortgagor; (e) any and all renewals or extensions of any such item of indebtedness or obligation or any part thereof; (f) any future advances which may be made by Mortgagee to Mortgagor, whether made to protect the security or otherwise, and whether or not evidenced by additional promissory note or other evidences of indebtedness (but nothing in this Mortgage shall be interpreted to require Mortgagee to make any future advances); and (g) all interest due on all of the same (all of the above are hereinafter collectively the “ Indebtedness” , which term shall also include any part or portion thereof).  Nothing in this Mortgage shall be construed to obligate Mortgagee to make any renewals or additional loans or advances.

 

3.              Warranty of Title.   Mortgagor warrants to Mortgagee good title to the Property and warrants and agrees that the same is free from all liens except as set forth in Section 1 above; that Mortgagor has good and legal right, power and authority to so convey the Property to Mortgagee; that Mortgagor and its successors in interest will forever warrant and defend the title of the Property as represented above and the estate and priority of this Mortgage against the lawful claims and demands of all persons whomsoever claiming through Mortgagor; and that Mortgagor will execute, acknowledge and deliver all and every such further assurances to the Mortgagee of the title to all the Property.  All of these covenants shall run with the land.

 

4.              Payment of the Note and Indebtedness.   Mortgagor agrees to pay promptly the principal of and all interest on the Note and other Indebtedness at the times and in the manner provided in the Note and the other Loan Documents.

 

5.              Maintenance and Repairs; Compliance With Laws.

 

(a)            Mortgagor shall (i) not permit, commit or suffer to exist any waste, impairment or deterioration of the Property (except normal wear and tear); (ii) keep and maintain the Property and every part thereof and the fixtures, machinery and appurtenances in working condition; (iii) effect such repairs and make all needed and proper replacements so that the Improvements, fixtures, equipment, goods, machinery and appurtenances will at all times be in working condition; (iv) make such repairs as Mortgagee may reasonably require so that the Property is in working condition; (v) fully comply with all statutes, laws, ordinances, regulations, requirements, orders or decrees relating to Property enacted or imposed by any federal, state or municipal authority, including courts and administrative agencies of competent jurisdiction; (vi) observe and fully comply with all conditions and requirements necessary to preserve and extend any and all rights, licenses, permits (including but not limited to zoning variances, special

 

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exceptions and nonconforming uses), privileges, franchises and concessions which are applicable to the Property or which have been granted to or contracted for by Mortgagor in connection with any existing or presently contemplated use of the Property; and (vii) permit Mortgagee or its agents, at all reasonable times, to enter upon and inspect the Property, subject to the rights of tenants.

 

(b)            Mortgagee shall have the right, at any time and from time to time, to engage an independent party to determine whether the Property is being maintained so that it is in working condition.  If the maintenance is determined to be inadequate, such party shall determine the estimated cost of such repairs and replacements as are necessary to place the Property in working condition, and Mortgagor shall promptly perform the repairs and replacements.  Mortgagor acknowledges that upon such a determination the security of this Mortgage will be impaired to the extent of the estimated cost of such repairs and replacements.  In such event, Mortgagor shall also reimburse Mortgagee for the reasonable costs of such inspection, and the same shall be a part of the Indebtedness secured hereby.  If the independent party determines the Property is in working condition, then the inspection shall be at Mortgagee’s expense.

 

6.              Taxes.  Mortgagor agrees to:

 

(a)            pay, before delinquency and before any penalty for nonpayment attaches thereto, all taxes, assessments, water rates, sewer rentals and other governmental, municipal or public dues, charges, fines or impositions which are or may be levied against the Property or any part thereof; to deliver to Mortgagee, at least ten (10) days before delinquency, receipted bills evidencing payment therefor; or to pay, in full, under protest and in the manner provided by statute, any tax, assessment, rate, rental, charge, fine or imposition which Mortgagor may desire to contest; and

 

(b)            if the state where the Property is located enacts any law imposing in any manner a tax upon this Mortgage, Mortgagor shall immediately pay the Indebtedness in full, except that this provision will not apply in the event Mortgagor lawfully pays in full any such tax or assessment; and

 

(c)            keep the Property free from statutory liens of every kind.

 

7.              Casualty Insurance.

 

(a)            Mortgagor agrees to keep the Improvements insured against loss or damage by, or abatement of rental income resulting from, fire and such other hazards, casualties and contingencies (including, but not limited to, vandalism, malicious mischief and so-called “all risk” coverage, if available at a reasonable premium) in such amounts as may reasonably be required by Mortgagee.  Mortgagor will pay promptly when due any premiums on such insurance.  All such insurance shall be carried with companies approved by Mortgagor and lawfully operating in the state where the Property is located.  The policies and renewals thereof or certificates respecting such policies and renewals shall be deposited with and held by Mortgagee, shall evidence full payment of the premiums therefor, and shall (i) name Mortgagee

 

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as an additional insured, with a separation of insureds clause, sometimes also called a “severability of insureds” or “cross liability” clause; and shall include (ii) an agreed amount endorsement; (iii) a replacement cost endorsement; (iv) an inflation guard endorsement; and (v) a standard waiver of subrogation endorsement, if available, all in form acceptable to Mortgagee.  Mortgagor shall not carry separate insurance, concurrent in kind or form and contributing in the event of loss with any insurance required hereunder, unless Mortgagee is included as a mortgagee thereunder pursuant to the type of clause described in clause (i) above.  All policies shall provide for at least thirty (30) days’ advance written notice to Mortgagee prior to any cancellation or material modification thereof.

 

(b)            In the event of a change in ownership of or occupancy of the Property (except for ordinary changes in tenant occupancy), Mortgagor shall immediately deliver notice by mail to all insurers.

 

(c)            In the event of a loss to the Property exceeding $500,000 in damage amount, Mortgagor will give immediate notice to Mortgagee, whereupon Mortgagee may at its option assume the right to settle and adjust any such claim under such policies without consent of Mortgagor (although Mortgagee will endeavor to contact Mortgagor and obtain Mortgagor’s consent to any such settlement or adjustment).  Mortgagee shall notify Mortgagor of whether it elects to take action within twenty (20) days after Mortgagee receives Mortgagor’s notice.  If Mortgagee sends Mortgagor no such notification, then Mortgagor shall be allowed to adjust the loss itself, with Mortgagee reserving the later right to take over the process if it so elects.  After deducting all costs of collection, the proceeds of any insurance shall be applied, at the option of Mortgagee, as follows: (i) as a credit upon any portion of the Indebtedness, as selected by Mortgagee; or (ii) to restoring the Improvements, at the direction of Mortgagor.  If Mortgagor is not then in default under any of the Loan Documents, Mortgagee shall allow the proceeds to be applied as specified in alternative (ii) of the above sentence, with any excess proceeds remaining after restoration of the Improvements to be applied as specified in alternative (i).

 

(d)            In the event Mortgagee elects to allow insurance proceeds to be disbursed for restoration of the Improvements (or such disbursement is required above), the insurance proceeds shall be paid to Mortgagee for Mortgagee to hold and disburse in accordance with this Section.  Mortgagor shall provide Mortgagee with a good faith estimate by a third party of the costs of completing the work.  If the estimated cost of completing the work exceeds the amount of insurance proceeds, then Mortgagor shall deposit with Mortgagee additional funds from Mortgagor or other sources which shall be sufficient to make up the difference.  The insurance proceeds shall be disbursed by Mortgagee from time to time upon the Mortgagee being furnished with (i) satisfactory evidence that the insurance proceeds, together with any additional funds which may be provided by Mortgagor, continue to constitute sufficient amounts to fully pay the estimated costs of completion of such work; and (ii) such architect’s certificates, waivers of lien, contractor’ s sworn statements and such other evidences of costs and of payment as the Mortgagee may reasonably require and approve.  Mortgagee may, in any event, require that all plans and specifications for such restoration, repair, replacement and rebuilding be submitted to and approved by the Mortgagee prior to commencement of work.  No payment made prior to the final completion of the work shall exceed ninety percent (90%) of the cost of the work performed.  Funds other than proceeds of insurance shall be disbursed prior to disbursement of

 

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insurance proceeds.  Any insurance proceeds and other funds paid over to the Mortgagee to be applied to the work shall be invested for the account of the Mortgagor, in an interest bearing account with Mortgagee (or another account or which shall be mutually satisfactory to both Mortgagee and Mortgagor), and the interest earned on such account or instrument shall be held in such account and applied in the same manner as the principal.

 

(e)            In the event of a foreclosure of this Mortgage or other transfer of title to the Property extinguishing the Indebtedness or the lien of this Mortgage, all right, title and interest of Mortgagor in and to any insurance policies then in force shall pass to and are hereby assigned by Mortgagor to the purchaser or grantee.

 

8.              Public Liability Insurance.   Mortgagor agrees to carry and maintain liability and indemnity insurance, including without limitation water damage insurance and the so-called assumed and contractual liability coverage, in forms, in such amounts and with such insurers as may be reasonably required from time to time by Mortgagee.  Certificates of such insurance, evidencing full payment of the premiums, shall be deposited with Mortgagee and shall contain provisions for thirty (30) days’ written notice to Mortgagee prior to any cancellation or modification of the policies.

 

9.              Alterations, Removal and Demolition.  No Improvements shall be altered, except in the ordinary course of business, or removed or demolished and no fixtures, equipment or appliances on, in or about the Improvements having an aggregate value in excess of $50,000 shall be shall severed or removed, except in the ordinary course of business, or sold or mortgaged, without the prior written consent of Mortgagee, which shall not be unreasonably withheld.  In the event all or any part of the fixtures, appliances equipment or other goods are demolished or destroyed, Mortgagor shall promptly replace the same with similar fixtures and appliances at least equal in quality and condition to those replaced, free from any security interest in or any encumbrance thereon or reservation of title thereto except as noted in paragraph 1 (however, if any such items were originally leased or encumbered, the replacements may be so leased or encumbered).

 

10.            Mechanic’s Liens.

 

(a)            Mortgagor will keep the Property free from any mechanic’s liens, other statutory liens or claims, and any other claims of all persons supplying labor or materials which enter into the construction, alteration, repair or replacement of any and all Improvements.

 

(a)            Notwithstanding the above provisions, Mortgagor shall have the right to contest any such lien or claim of any person supplying such labor or materials.  However, within thirty (30) days after the filing of any mechanic’s lien or other statutory claim which Mortgagor may desire to contest, Mortgagor shall furnish Mortgagee with cash, a bond (in statutory form or such other form as Mortgagee may find reasonably satisfactory), an irrevocable unconditional letter of credit in favor of Mortgagee, or other security as Mortgagee may find reasonably satisfactory, in an amount equal to one and one half times the amount of such lien.  Mortgagee may also require an endorsement to its mortgagee policy of title insurance insuring over such lien.  Any such

 

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contest shall not otherwise create or result in a failure on the part of Mortgagor to comply with the terms, provisions and conditions hereof.

 

(b)            Mortgagor shall in any event, including under the circumstances described in the above subsection, pay in full any such mechanic’s lien or other statutory lien or claim prior to any foreclosure of the same or other event which would jeopardize Mortgagor ‘s title to the Property or the lien of this Mortgage.

 

11.            Documentary Stamps.  If at any time the United States government, or any other governmental authority, requires internal revenue or other documentary stamps hereon or on the Note or any of the other Loan Documents, or requires payment of an interest equalization tax upon all or any part of the Indebtedness, then the Indebtedness shall be and become due and payable at the election of Mortgagee ninety (90) days after Mortgagee mails a notice of such election to Mortgagor.  However, Mortgagee shall have no such election and the Note and this Mortgage shall remain in effect if Mortgagor lawfully may pay for such stamps or such tax and does in fact pay such tax when the same is due and payable.  Mortgagor further agrees to deliver to Mortgagee, at any time upon written demand, evidence of citizenship and such other evidence as may be required by any government agency having jurisdiction, in order to determine whether the obligation secured hereby is subject to or exempt from any such tax.

 

12.            Indemnification of Mortgagee Against Costs.   Mortgagor agrees to save Mortgagee harmless from all costs and expenses, including reasonable attorneys’ fees and expenses and all costs of a title search and preparation of a survey, incurred by reason of any action, suit, proceeding, hearing, motion or application before any court or administrative body (including an action to foreclose or to collect the Indebtedness) in and to which Mortgagee may be or become a party by reason of this Mortgage, including but not limited to condemnation, bankruptcy, probate and administration proceedings, as well as any other of the foregoing in which a proof of claim is by law required to be filed or in which it becomes necessary to defend or uphold the terms of this Mortgage.  All funds paid or expended by Mortgagee in that regard, together with interest thereon from date of such payment at the rate set forth in the Note, shall be a part of the Indebtedness and shall upon notice to Mortgagor be immediately due and payable by Mortgagor to the Mortgagee.  Any amounts not paid within ten (10) days after a statement therefor has been sent to Mortgagor, shall earn interest at the Default Rate stated in the Note, until the same is paid.

 

13.            Eminent Domain.

 

(a)            All compensation, proceeds and awards paid to or received by Mortgagor in any taking by eminent domain or conveyance in lieu thereof that may affect all or any part of or interest in the Property (whether permanently or temporarily), including severance and consequential damages and damages from a change in the grade of any street, are hereby assigned to Mortgagee subject to the terms hereof.  Mortgagor hereby appoints Mortgagee as its attorney-in-fact, coupled with an interest, to collect and receive the proceeds thereof and to give proper receipts therefor.  Mortgagor authorizes and empowers Mortgagee, as such attorney-in-fact, at Mortgagee’s option, on behalf of Mortgagor (notwithstanding the fact that the Indebtedness may not then be due and payable or that the Indebtedness is otherwise adequately

 

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secured), to adjust or join with Mortgagor in adjusting or compromising the claim for any such compensation, proceeds or awards.  After deducting all costs of collection, such compensation, proceeds and awards shall be applied, at the option of Mortgagee, as follows:  (i) as a credit upon any portion of the Indebtedness, as selected by Mortgagee; or (ii) to restoring the Improvements, at the direction of Mortgagor.  If Mortgagor is not then in default under any of the Loan Documents, Mortgagee shall allow the proceeds to be applied as specified in alternative (ii) of the above sentence, with any excess proceeds remaining after restoration of the Improvements to be applied as specified in alternative (i).

 

(b)            In the event Mortgagee elects not to apply such compensation, proceeds or awards to the Indebtedness (or such application is not permitted above), Mortgagee shall release any such amounts in the same manner and under the same conditions as are specified above for the disbursement of insurance proceeds received in the event of casualty loss to the Property.

 

(c)            Mortgagor agrees to give Mortgagee immediate notice of the actual or threatened commencement of any such eminent domain proceeding, and agrees to promptly send to Mortgagee copies of any and all papers served or received by Mortgagor in connection with any such proceedings.  Mortgagor also agrees to make, execute and deliver to Mortgagee at any time or times, upon request, free, clear and discharged of any encumbrance of any kind whatsoever, any and all further assignments and/or other instruments which are deemed necessary by Mortgagee for the purpose of validly and sufficiently assigning to Mortgagee all such compensation, proceeds and awards to Mortgagee.

 

14.            Advances by Mortgagee to Protect Security.

 

(a)            Upon default by Mortgagor in performance of any of the terms, covenants or conditions in this Mortgage, or upon a default of any party obligated under the Note or other Loan Documents in the performance of any terms, covenants or conditions in such documents, Mortgagee may, at its option and whether or not it elects to declare the Indebtedness due and payable, pay such amounts and take such actions as Mortgagee may deem necessary or appropriate to cure the default or protect the value of the security for the Note.  Mortgagee may take such actions and make such payments without the same being a waiver of any other remedy.  In connection with any such advance, Mortgagee, at its option, may and is hereby authorized to obtain a report of title prepared by a title insurance company, the cost of which shall be paid by Mortgagor upon demand.  Any amounts so paid by Mortgagee, all costs incurred by Mortgagee under the authorizations contained in this Section, and any other costs, charges or expenses incurred by Mortgagee in the protection of the Property, with interest at the Default Rate stated in the Note, shall be payable by Mortgagor to Mortgagee upon notice, and shall be additional Indebtedness secured by this Mortgage.

 

(b)            In making any payment authorized above relating to taxes, assessments, water rates, sewer rentals and other governmental or municipal charges, fines, impositions or liens, Mortgagee may rely upon any bill, statement or estimate procured from the appropriate public office without inquiry into the accuracy of the bill, statement or estimate, and without inquiring into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim

 

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thereof.  Mortgagee, in making such a payment relating to any apparent or threatened adverse title, lien, statement of lien, encumbrance, claim or charge, shall be the sole judge of the legality or validity of same.

 

(c)            Notwithstanding the above provisions, in the event that Mortgagee wishes to pay under authority of this Section, any lien, charge or other such amount, Mortgagee shall give to Mortgagor at least ten (10) days’ notice prior to making any such advances, except in the case of emergency or where the prior conduct of Mortgagor indicates that there is not a reasonable possibility that Mortgagor would respond to the notice.   If Mortgagor, after receiving such notice, (i) advises Mortgagee in writing within five (5) days after the date of the notice of Mortgagor’s intent to contest its obligation to pay the liens, charges or other amounts which Mortgagee proposes to pay; and (ii) Mortgagor furnishes Mortgagee with cash, a bond, an irrevocable unconditional letter of credit or other security satisfactory to Mortgagee in an amount equal to one and one-half times the amount of such contested lien or charge, then in such event Mortgagee shall not advance payment of such contested amounts.  In any event, if Mortgagor contests the payment of such amounts, the amounts shall be paid prior to any foreclosure of the lien or charge and prior to any other event which would jeopardize Mortgagor’s title to the Property or the lien of this Mortgage.

 

15.            Mortgage Subordinate at Option of Mortgagee.   At the sole option of Mortgagee, this Mortgage shall become subject and subordinate, in whole or in part, to any or all leases of all or any part of the Property, upon the execution and recording by Mortgagee of a unilateral declaration to that effect.  The subordination shall apply only with respect to the leases specifically described by Mortgagee, shall not apply to other interests in the Property, and specifically shall not apply to the priority of this Mortgage over or any judgment liens, mechanic’s liens, tax liens or other liens or charges affecting the Property after the date hereof.  In addition, the subordination to such leases shall in no manner apply with respect to Mortgagee’s entitlement to any insurance proceeds or any payments, awards or compensation made in any eminent domain or condemnation proceedings or any payment received as a result of a conveyance in lieu of condemnation.

 

16.            Proceeds Subrogated.   If any Indebtedness advanced by Mortgagee to Mortgagor is used, directly or indirectly, to pay off, discharge or satisfy, in whole or in part, any prior lien or encumbrance upon the Property or any part thereof, then Mortgagee shall be subrogated to any security held by the holder of such other lien or encumbrance, notwithstanding any release of the same from the public records.

 

17.            Partial Releases by Mortgagee.   Mortgagee, without notice to Mortgagor, without regard to the consideration, if any, paid therefor, and notwithstanding the existence at that time of any inferior deeds of trust or other liens on the Property, may release any part of the Property or other security described in the Loan Documents and may release any person liable for any Indebtedness without in any way affecting the priority of this Mortgage, to the full extent of the remaining Indebtedness, on the remainder of the Property.  Mortgagee may also agree with any party obligated for the Indebtedness or having any interest in the Property or other security for the Indebtedness to extend the time for payment of any part or all of the Indebtedness or to modify the terms for the payment thereof, or take additional security for the payment of the

 

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Indebtedness.  No such action or agreement will release or impair the lien or effect of this Mortgage or bar Mortgagee from exercising any right, power or privilege granted in this Mortgage or in any of the other Loan Documents, in the event of any default or any subsequent default.

 

18.            Usury.   Nothing contained in this Mortgage or the other Loan Documents shall be construed or shall so operate either presently or prospectively to require Mortgagor to pay interest at a rate greater than the rate which is now lawful for transactions of this kind in the state identified on the first page, or require Mortgagor to make any payment or do any act contrary to law.  If the interest rate exceeds any applicable law relating to interest, then this Mortgage and the Loan Documents shall be interpreted and construed to require payment of interest only to the extent of such maximum lawful rate, not to exceed the rate set forth in the Note or in this Mortgage, where applicable.

 

19.            Actions and Proceedings.   Mortgagee shall have the right (but not the obligation) to appear in and defend any proceeding or action with respect to the Property, and to bring any action or proceeding respecting the Property as Mortgagee reasonably deems advisable, either in its own name or in the name of and on behalf of Mortgagor.

 

20.            Sale of Property

 

(a)            Mortgagor understands that Mortgagee, in making the loan evidenced by the Note, is relying to a material extent upon the business expertise and net worth of Mortgagor and upon its continuing interest in the Property.   Accordingly, Mortgagor shall not , without Mortgagee’s prior written consent (which Mortgagee may withhold in its sole and unfettered discretion), either directly or indirectly, voluntarily or involuntarily:

 

(i)             sell, assign, transfer, convey, or dispose of the Property, by installment sale contract or otherwise, or grant any option for the purchase of the Property or any part thereof;

 

(ii)            lease the Property, other than individual tenant leases granted in the ordinary course of business, or lease the Property (whether or not in the ordinary course of business) with an option to purchase;

 

(iv)           further encumber the Property, voluntarily or involuntarily, or by operation of law, or allow to exist against the Property any lien, mortgage, deed of trust, or other financial encumbrance; or

 

(i)             create or allow the creation of any lien or security interest in any personal property, fixtures or equipment included within the Property, except as referred to in paragraph 1.

 

(b)            Any action described in the above subsection shall be an Event of Default hereunder (as hereafter defined), for which Mortgagee will be entitled to its remedies for default,

 

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as provided herein.  The word “ Property” as used herein shall have the full meaning earlier given, and specifically shall include any parts or portions of the Property.

 

(c)            Whether or not Mortgagee’s consent has been obtained, Mortgagor shall give immediate written notice to Mortgagee of any conveyance, transfer or change of ownership of the Property or of any interest described in this Section.

 

21.            Notices.   Any notice required or permitted to be given hereunder must be in writing and given (a) by depositing same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested; (b) by delivering the same in person to such party; (c) by transmitting a facsimile copy to the correct facsimile phone number of the intended recipient; or (d) by depositing the same into the custody of a nationally recognized overnight delivery service addressed to the party to be notified.  In the event of mailing, notices shall be deemed effective three (3) days after posting; in the event of overnight delivery, notices shall be deemed effective on the next business day following deposit with the delivery service; in the event of personal service or facsimile transmissions, notices shall be deemed effective when delivered.  For purposes of notice, the addresses of the parties shall be as set forth on the first page of this Mortgage.  From time to time either party may designate another or additional addresses for all purposes of this Mortgage by giving the other party no less than ten (10) days’ advance notice of such change of address in accordance with the notice provisions hereof.

 

22.            Assignment of Leases, Rents and Profits.

 

(a)            Subject to any prior liens of lenders referred to in paragraph 1, Mortgagor hereby assigns, transfers and conveys to Mortgagee, as primary security for repayment of the Note and satisfaction of Mortgagor’s obligations under the L