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2 01400400
<br />Borrower and /or others and by or in favor of Lender, which evidence, secure or guarantee all
<br />or any portion of the payments due under the Note or otherwise is executed and/or delivered
<br />in connection with and directly related to the Note and this Security Instrument (including,
<br />without limitation, the Assignment). All payments due to Borrower or Lender under the
<br />Lease (other than Excepted Rights and Excepted Payments, including without limitation any
<br />prepaid Fixed Rent (as defined in the Lease) paid on the Lease Commencement Date (as
<br />defined in the Lease) (to the extent such Fixed Rent is not allocable to interest due on the
<br />Note on January 10, 2014) not exceeding an amount equal to the Fixed Rent from the closing
<br />date of the Loan through January 2014) shall be paid directly by Lessee to Lender when such
<br />amounts are due and payable. All such payments received by Lender shall be applied
<br />promptly upon receipt, but not less than monthly, as follows: . first, all amounts then due and
<br />payable under the Note and the other Loan Documents ( "Debt Service ") shall be paid to or
<br />retained by Lender, as the case may be; and second, except for any payments made in
<br />advance of their due date (which such payments shall be held by the Lender and applied as
<br />provided in this sentence on such due date), as long as no uncured Event of Default
<br />(hereinafter defined) or payment or bankruptcy default as described in paragraphs 21(h) or
<br />21(i) hereof exists hereunder or under the Note or any of the other Loan Documents, the
<br />balance of funds, if any, shall be paid within five (5) Business Days (as defined in the Note)
<br />after the receipt of good funds by Lender to Borrower by wire transfer of immediately
<br />available funds to an account designated by Borrower, which payments to Borrower shall be
<br />free of the lien of this Security Instrument and all rights of Lender under the other Loan
<br />Documents, including, without limitation, the Assignment.
<br />2. Warranty of Title; Other Representations.
<br />(a) Borrower warrants that Borrower has good and marketable title to the Mortgaged
<br />Property and has the right to mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
<br />confirm, pledge, assign and hypothecate the same and that, except for this Security
<br />Instrument, the other Loan Documents and the Permitted Exceptions (as hereinafter
<br />defined) Borrower possesses an unencumbered fee estate in the Premises and the
<br />Improvements subject to the Lease and that it owns the Mortgaged Property free and
<br />clear of all liens, encumbrances and charges whatsoever except for (i) the Lease, (ii) the
<br />Other Leases, (iii) those exceptions shown in (or insured against by) the title insurance
<br />policy insuring (or any pro forma title insurance policy purporting to insure) the Iien of
<br />this Security Instrument, (iv) a right of first refusal to purchase the Mortgaged Property
<br />benefiting the Paragraph 2 Beneficiary or Guarantor, each as set forth on Schedule A
<br />attached hereto and made a part hereof, and /or their respective affiliates and their
<br />respective successors and assigns (provided, that in no event shall such right of first
<br />refusal be for the benefit of Lessee or Lease Guarantor, and such right of first refusal
<br />shall expressly not apply to any foreclosure sale or deed in lieu of foreclosure), which
<br />right of first refusal is subordinate to the lien of this Security Instrument, and (v) other
<br />items as herein expressly permitted (all of the foregoing, collectively, the "Permitted
<br />Exceptions "). The Permitted Exceptions do not and will not materially and adversely
<br />affect (a) the ability of Borrower to pay in full the principal and interest on the Note in
<br />a timely manner, or (b) the use of the Premises for the use currently being made
<br />thereof, the operation of the Premises as currently being operated, or the value of the
<br />Premises. Subject to the Permitted Exceptions, Borrower shall forever warrant, defend
<br />and preserve such title and the validity and priority of the lien of this Security
<br />Instrument and shall forever warrant and defend the same to Lender against the claims
<br />of all persons whomsoever. The foregoing warranty of title shall survive the
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