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HomeMy WebLinkAbout12-6547KLEHR HARRISON HARVEY BRANZBURG LLP By: Anthony P. Tabasso, Esquire/Scott P. Shectman, Esquire I.D. Nos.: 80851/92276 1835 Market Street, Suite 1400 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFF (215) 569-2700 LEXINGTON K MAIN, L.P. c/o Lexington Realty Trust One Penn Plaza, Suite 4015 New York, NY 10119, V. Plaintiff', CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION LEXMAIN REALTY VENTURES, LLC : NO.: 1 181 Sussex Road Teaneck, NJ 07666, Defendant. NOTICE TO DEFEND AVA J Cc SK ? ..y ? c?1 c.=a You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 or (717) 249-3166 2426971_2 PTUL 1 2426974.2 aM} R ?r? a00 Xa ? KLEHR HARRISON HARVEY BRANZBURG LLP By: Anthony P. Tabasso, Esquire/Scott P. Shectman, Esquire I.D. Nos.: 80851/92276 1835 Market Street, Suite 1400 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFF (215) 569-2700 LEXINGTON K MAIN, L.P. c/o Lexington Realty Trust One Penn Plaza, Suite 4015 New York, NY 10119, CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, CIVIL ACTION V. LEXMAIN REALTY VENTURES, LLC 1181 Sussex Road Teaneck, NJ 07666, NO.: Defendant. COMPLAINT IN MORTGAGE FORECLOSURE Lexington K Main, L.P. ("Lexington" or "Plaintiff'), by and through its counsel, Klehr Harrison Harvey Branzburg LLP, by way of Complaint in Mortgage Foreclosure against Lexmain Realty Ventures, LLC ("Lexmain" or "Defendant"), avers and represents as follows: THE PARTIES 1. Plaintiff is a Delaware limited partnership with an address at One Penn Plaza, Suite 4015, New York, New York 10119. 2. Defendant is Delaware limited liability company with an office at 1181 Sussex Road, Teaneck, New Jersey 07666. BACKGROUND 3. On December 21, 2001, JPMorgan Chase Bank N.A. ("JPMorgan") entered into a loan transaction with Lexington Kingston Main L.P. ("Kingston") whereby JPMorgan made a loan to Kingston in the original principal amount of $3,550,000.00 (the "Loan") 2426971 2 PI FIL1 242697]v.2 4. The Loan was evidenced by, inter alia, that certain Fixed Rate Note (the "Note"), which was made, executed and delivered to JPMorgan by Kingston on or about December 21, 2001. A true and correct copy of the Fixed Rate Note is attached hereto as Exhibit "A" and incorporated herein by reference. 5. The Loan was secured by, among other things, that certain Fee and Leasehold Mortgage and Security Agreement (the "Mortgage") encumbering certain real property (the "Property"), which Mortgage was made, executed and delivered by Kingston and grantor, Lepercq Corporate Income Fund L.P., to JPMorgan on December 21, 2001. A true and correct copy of the Mortgage is attached hereto as Exhibit "B" and incorporated herein by reference. The Property is more fully described in the legal description attached to, and forming part of, the Mortgage. 6. The Mortgage was recorded on or about December 27, 2001, in the Office of the Cumberland County Recorder of Deeds in Mortgage Book 1744 page 178. 7. The Note, the Mortgage and all documents executed in conjunction therewith, pursuant thereto, and all amendments to, or restatements or modifications of, any of the foregoing are referred to collectively hereinafter as the "Loan Documents." 8. The Loan was subsequently securitized and the Note and Mortgage were assigned from JPMorgan to Wells Fargo Bank Minnesota, N.A. ("Wells Fargo'), as Trustee on behalf of the Certificate Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Pass-Through Certificates, Series 2002-C1 (the "JPMCM Securities"). This assignment was recorded on March 28, 2003 in the Office of the Cumberland County Recorder of Deeds in Record Book 695 page 3955. A true and correct copy of the Assignment from 2426971_2 2 PML1 2426971v.2 JPMorgan to Wells Fargo is attached hereto as Exhibit "C" and incorporated herein by reference. 9. Wells Fargo then assigned the Note and Mortgage to U. S. Bank National Association ("U.S. Bank"), as the Trustee for the Registered Holders of the JPMCM Securities. This assignment was recorded on December 29, 2009 in the Office of the Cumberland County Recorder of Deeds in Instrument Number 200942696. A true and correct copy of the Assignment from Wells Farago to U.S. Bank is attached hereto as Exhibit "D" and incorporated herein by reference. 10. U.S. Bank thereafter assigned the Note and Mortgage to German American Capital Corporation ("GACC"). This assignment was recorded on January 4, 2011 in the Office of the Cumberland County Recorder of Deeds in Instrument Number 201100368. A true and correct copy of the Assignment from Wells Fargo to U. S. Bank is attached hereto as Exhibit "E" and incorporated herein by reference. 11. GACC then assigned the Note and Mortgage to Lexington. This assignment was recorded on January 19, 2011 in the Office of the Cumberland County Recorder of Deeds in Instrument Number 201102209. A true and correct copy of the Assignment from GACC to Lexington is attached hereto as Exhibit "F" and incorporated herein by reference. 12. Lexington is the current holder of the Note and Mortgage. 13. Defendant purchased the Property from Kingston and entered into an Assumption Agreement, dated December 23, 2010 and effective January 11, 2011, with, amongst others, Kingston, Lepercq Corporate Income Fund L.P., and Lexington, wherein Defendant, inter aha, assumed Kingston's obligations, liabilities and responsibilities under the Loan, including the obligations, liabilities and responsibilities under the Note and Mortgage. The Assumption 2426971 2 3 I'Hll_ 1 242697]v.2 Agreement was recorded in the Office of the Cumberland County Recorder of Deeds in Instrument Number 201102212. A true and correct copy of the Assumption Agreement is attached hereto as Exhibit "G" and incorporated herein by reference. 14. The Assumption Agreement also amended certain terms of the Note, including the maturity date. 15. Defendant is the real owner of the Property and by virtue of the Assumption Agreement is liable under the Loan and is responsible to pay all sums due under the same. 16. The Loan is secured by both the Mortgage and a lien on personalty, which was perfected by the filing of a UCC-1 Financing Statement with the Commonwealth on or about January 20, 2011 at number 201101210647. A true and correct copy of the UCC-1 Financing Statement is attached hereto as Exhibit "H" and incorporated herein by reference. 17. Pursuant to Pa.R.C.P. 3101.2 and UCC §9604, Plaintiff is electing to proceed against both the Property and any personalty in this action. COUNTI Lexington v. Defendant 18. Plaintiff incorporates herein by this reference the averments of the preceding paragraphs of the Complaint above as though set forth at length. 19. Defendant promised, inter alia, to repay the Loan in accordance with the provisions of the Loan Documents and the Assumption Agreement. 20. Defendant is in default of its obligations to Lexington under the Note, the Mortgage, Assumption Agreement and the other Loan Documents, by virtue of, inter alia, its failure to make the scheduled, monthly principal and interest payments, as well as the monthly escrow and reserve deposits, due under the Note and Mortgage since February 1, 2012. 2426971 2 4 P1-HL 12426971 v.2 21. Said defaults have continued for in excess of any applicable cure periods and despite two notices of default ("Default Notices") being sent to Defendant on March 13, 2012 and September 20, 2012. True and correct copies of the Default Notices are attached collectively hereto as Exhibit "I" and incorporated herein by reference. 22. As a result of the aforesaid defaults, all of the indebtedness under the Note and Mortgage are immediately due and payable in full, and as of October 1, 2012, the sum of $3,220,915.17 was immediately due and owing to Lexington from Defendant, which sum is comprised as follows: Principal $ 2,913,675.69 Interest (as of 10/1/2012) $ 172,531.69 Default Interest (as of 10/1/2012) $ 110,881.55 Late Fees $ 23, 546.43 Bank Fees $ 279.81 TOTAL $ 3,220,915.17 Interest continues to accrue on the Loan from and after October 1, 2012, at the per diem rate of $1,034.35, which may fluctuate based on the Default Interest provisions set forth in the Note. The Mortgage also secures, and Defendant is required to pay, Lexington's attorneys' fees and costs of collection in connection with the Loan. 23. During the course of this action, Lexington may be obligated to make advances for the payment of taxes, insurance premiums and necessary repairs and expenses to preserve the security of the Mortgage, and such sums advanced under the terms of the Note and Mortgage, together with interest, are to be added to the amount due on the Loan and secured by the Mortgage. 24. No conditions precedent to the entry of judgment in mortgage foreclosure or any other relief requested herein against Defendant remains unperformed. 2426971_2 5 PHIL1 2426971v.2 25. The provisions of 41 P.S. §§ 101, et. seq., are not applicable to this action because, inter alia, the Property securing the Loan is not "residential property" within the meaning of that statute, and the Loans are not otherwise within the scope of that statute. 26. The provisions of 35 P.S. §§ 1680.401c, et. seq., are not applicable to this action because, inter alia, the Property securing the Loan is not a one or two-family owner-occupied residence, and the Loans are not otherwise within the scope of that statute. WHEREFORE, plaintiff, Lexington K Main, L.P., respectfully requests the entry of judgment in mortgage foreclosure in its favor and against the defendant, Lexmain Realty Ventures, LLC, in the amount of $3,220,915.17, plus interest from and after October 1, 2012 at the per diem rate of $1,034.35, and reasonable attorneys' fees and costs of suit, and for foreclosure and sale of the Property and the personalty, and such other and further relief as the Court deems just and proper KLEHR HARRISON HARVEY BRANZBURG LLP Dated:. 2012 B ---- Anthony P. Tabasso, Esquire Scott P. Shectman, Esquire 1835 Market Street, Suite 1400 Philadelphia, PA 19103 Attorneys for Plaintiff ,2426971 2 6 PML 1 242697]v.2 VERIFICATION ?h?5r?j, hereby states that I am the authorized representative of Lex GP-1 'P'rust, the general partner of Lepercq Corporate Income Fund, L.P., a member of Lexington Kingston Main, LLC, which is the general partner of the plaintiff, Lexington K Main L.P.. and as such, '1 am authorized to make this Verification on the plaintiff's behalf, that I have read the statemcrrts contained in the foregoing Complaint in Mortgage Foreclosure, and that the statements contained therein are true and correct to the best of my knowledge, information and belief. T'he Undersigned also understands that these statements are made subject to the penalties of 18 l'i.C.S.A. § 4404 relating to unsworn falsification to authorities. Dated: ?J? fc' %?rLr Foreclosure Complaint against Lexmain Realty Ventures (4).DOC PI I I I J 1-20971v.2 EXHIBIT A Loan No. V_23089 FIXED RATE NOTE $3,550,000.00 2001 FOR VALUE RECEIVED, and intending to be legally bound, LEXINGTON KINGSTON MAIN LP., a Delaware limited partnership (hereinafter referred to as "Borrower"), promises to pay to the order of JPMORGAN CHASE BANK , a New York banking corporation, its successors and assigns (hereinafter referred to as "Lender"), at the office of Lender or its agent, designee, or assignee at 270 Park Avenue, New York, New York 10017, Attention: Loan Servicing, or at such place as Lender or its agent, designee, or assignee may from time to time designate in writing, the principal sum of THREE MILLION FIVE HUNDRED FIFTY THOUSAND AND NO1100 DOLLARS ($3,550,000.00), in lawful money of the United States of America, with interest thereon to be computed on the unpaid principal balance from time to time outstanding at the Applicable Interest Rate (hereinafter defined) at all times prior to the occurrence of an Event of Default (as defined in the Security Instrument [hereinafter defined]), and to be paid in installments as set forth below. Unless otherwise herein defined, all initially capitalized terms shall have the meanings given such terms in the Security Instrument. 1. PAYMENT TERMS Principal and interest due under this Note shall be paid as follows: (a) A payment of interest only on the date hereof for the period from the date hereof through December 31, 2001, both inclusive; and (b) A constant payment of $26,884.13, on the first day of February, 2002 and on the first day of each calendar month thereafter up to and including the first day of December, 2011; with payments under this Note to be applied as follows: (i) First., to the payment of interest and other costs and charges due in connection with this Note or the Debt, as Lender may determine in its sole discretion; and (ii) The balance shall be applied toward the reduction of the principal suns; and the balance of said principal sum, together with accrued and unpaid interest and any other amounts due under this Note shall be due and payable on the first day of January, 2012 or upon earlier maturity hereof whether by acceleration or otherwise (the "Maturity Date"). Interest on the principal sum of this Note shall be calculated on the basis of a three hundred sixty (360) day year and paid for the actual number of days elapsed. All amounts due under this Note shall be payable without setoff, counterclaim or any other deduction whatsoever. 5305133301 1 MORGAN GUARANTY TRUST COMPANY (11,99) 2. INTEREST The term "Applicable Interest hate" means from the date of this Note through and including the Maturity Date, a rate of Seven and 78/100ths percent (7.78%) per annurn. 3. SECURITY This Note is secured by, and Lender is entitled to the benefits of, the Security Instrument, the Assignment, the Environmental Agreement, and the other Loan Documents (hereinafter defined). The terin "Security Instrument" means the Fee and Leasehold Mortgage and Security Agreement dated the date hereof given by Borrower and Lepereq Corporate Income Fund, L.P. ("LCIF") for the use and benefit of Lender covering the estate of Borrower and LCIF in certain premises as more particularly described therein (which premises, together with all properties, rights, titles, estates and interests now or hereafter securing the Debt and/or other obligations of Borrower under the Loan Documents, are collectively referred to herein as the "Property"). The terra "Assignment" means the Assignment of Leases and Rents of even date herewith executed by Borrower and LCIF in favor of Lender. The tern "Environmental Agreement" means the Environmental Indemnity Agreement of even date herewith executed by LCIF in favor of Lender. The term "Escrow Agreement" means the Escrow Agreement for Reserves and Impounds of even date herewith executed by Borrower in favor of Lender, The term "Loan Documents" refers collectively to this Note, the Security Instrument, the Assignment, the Environmental Agreement, the Escrow Agreement and any and all other documents executed in connection with this Note or now or hereafter executed by Borrower, LCIF and/or others and by or in favor of Lender, which wholly or partially secure or guarantee payment of this Note or pertains to indebtedness evidenced by this Note. 4. LATE FEE. If any installment payable under, this Note (including the final installment due on the Maturity Date) is not received by Lender prior to the seventh (7'h) calendar day after the same is due (without regard to any applicable cure and/or notice period), Borrower shall pay to Lender upon demand an amount equal to the lesser of (a) five percent (5%) of such unpaid sum or (b) the maximum amount permitted by applicable law to defray the expenses incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, and such amount shall be secured by the Loan Documents. 5. DEFAULT AND ACCELERATION So long as an Event of Default (as defined in the Security Instrument) exists, Lender may, at its option, without notice or demand to Borrower, declare the Debt immediately due and payable.. All remedies hereunder, under the Loan Documents and at law or in equity shall be cumulative. In the event that it should become necessary to employ counsel to collect the Debt or to protect or foreclose the security for the Debt or to defend against any claims asserted by Borrower arising from or related to the Loan Documents, Borrower also agrees to pay to Lender, on demand all costs of collection or defense incurred by Lender, including reasonable attorneys' fees for the services of counsel whether or not suit be brought.. 2 MORGAN GUARANTY TRUST COMPANY 01/99) 53051333 01 6. DEFAULT INTEREST Upon tine occurrence of an Event of Default Borrower shall pay interest on the entire unpaid principal sum and any other amounts due under the Loan Documents at the rate equal to the lesser of (a) the rmaximum rate penaaitted by applicable law, or (b) the greater- of (i) five percent (5%) above the Applicable Interest Rate or (ii) five percent (5%) above the Prime Rate (hereinafter defined), in effect at tine time of the occurrence of the Event of Default (the "Default Rate")_ The tern) "Prime Rate" means the prime rate reported in the Money Rates section of The hl'all Street Journal. In the event that The Wall Street Journal should cease or temporarily interrupt publication, the ten n "Prime Rate" shall mean tlae daily average prime rate published in another business newspaper, or business section of a newspaper, of national standing and general circulation chosen by Lender. In the event that a prime rate is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index which is readily available and verifiable to Borrower but is beyond Lender's control. The Default Rate shall be computed from tine occun-ence of the Event of Default until the actual receipt and collection of a sum of money deter)nined by Lender to be sufficient to cure the Event of Default. Amounts of interest accrued at tine Default Rate shall constitute a portion of the Debt, and shall be deemed secured by tlae Loan Documents. This clause, however, shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of tlae occurrence of any Event of Default.. 7. PREPAYMENT (a) The principal balance of this Note may not be prepaid in whole or in part (except with respect to the application of casualty or condemnation proceeds) prior to the Maturity Date. If following the occurrence of any Event of Default, Borrower shall tender payment to Lender or Lender shall receive proceeds (whether through foreclosure or the exercise of the other remedies available to Lender- under- the Security Instrument or the other Loan Documents), Borrower shall pay in addition to interest accrued and unpaid oil the principal balance of this Note and all other sums then due under this Note and the other Loan Documents a prepayment consideration in an amount equal to the greater of (A) one percent (I%) of the outstanding principal balance of this Note at the time such payment or proceeds are received, or (B) (x) the present value as of tlae date such payment or proceeds are received of the remaining scheduled payments of principal and interest from the date such payment or proceeds are received through the Maturity Date (including any balloon payment) detennined by discounting such payments at the Discount Rate (as hereinafter defined), less (y) the amount of the payment or, proceeds received. The teen "Discount Rate" means the rate which, when compounded monthly, is equivalent to the Treasury Rate (as hereinafter defined), when compounded semi-annually. The term "Treasury Rate" means the yield calculated by the linear interlsolation of the yields, as reported in Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading "U.S. Govenrment Securities/Treasury Constant Maturities" for the week ending prior to the date the payment or such proceeds are received, of U_S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. (in the event Release H. IS is no longer published, Lender shall select a comparable publication) to deterTnine the Treasury Rate.) Lender shall notify Borrower of tl)e amount and the basis of detennnination of the required prepayment consideration, which shall be conclusive except in the case of manifest error. 3 MORGAN GUARANTY TRUST COMPANY 111/8(} 53051333111 Notwithstanding the foregoing, Borrower shall have the additional privilege to prepay the entire principal balance of this Note (together with any other sums constituting the Debt) on any scheduled payment date occurring on or after that date which is three (3) months preceding the Maturity Date without any fee or consideration fir such privilege.. (b) If the prepayment results from the application to the Debt of the casualty or condemnation proceeds from the Property, no prepayment consideration will be imposed. Partial prepayments of principal resulting from the application of casualty or condemnation proceeds to the Debt shall not change the amounts of subsequent monthly installments nor change the dates on which such installments are clue, unless Lender shall otherwise agree in writing. (c) (i) Notwithstanding any provision of this Section 7 to the contrary, at any time after the earlier of( l ) the date which is two years after the "startup clay," within the meaning of Section 860r(a)(9) of the Internal Revenue Code of 1986, as amended from time to time or any successor statute (the "Code"), of a "real estate mortgage investment conduit," within the meaning of Section 860D of the Code, that holds this Note, and (2) a regularly scheduled payment (late oil or after that date which is four (4) years after the date of the first monthly payment due under Section 1(b), and provided no Event of Default (or any event which with the passage of time or the giving of notice, or both, could become an Event of Default) has occurred under the Security Instrument or under any of the Loan Documents, Borrower may cause the release of the Property (in whole but not in part) from the lien of the Security Instrument and the other Loan Documents upon the satisfaction of the following conditions precedent: (A) not less than thirty (30) (lays prior written notice to Lender specifying a regularly scheduled payment date (the "Release Date") on which the Defeasance Deposit (hereinafter defined) is to be made; (B) the payment to Lender of interest accrued and unpaid on the principal balance of this Note to and including the Release Date; (C) the payment to Lender of all other sums, not including scheduled interest or principal payments, due under this Note, the Security Instrument and the other Loan Documents; (D) the payment to Lender of the Defeasance Deposit; and (E) the delivery to Lender of: (1) a security agreement, in form and substance satisfactory to Lender, creating a first priority lien on the Defeasance Deposit and the U.S. Obligations (hereinafter defined) purchased on behalf of Borrower with the Defeasance Deposit in acco?ztance with this subparagraph (the "Security Agreement"); (2) a release of the Property from the lien of the Security Instrument (for execution by Lender) in a tone appropriate for the jurisdiction in which the Property is located; 4 MORGANGUARANTY TRUST COMPANY (IPEN)) 53051333 M (3) an officer's certificate of Borrower certifying that the requirements set forth in this subparagraph (i) have been satisfied; (4) all opinion of counsel for Borrower in form satisfactory to Lender stating, among other things, that defeasance of this Note will not cause any adverse consequences to any REMIC holding the Loan or the holders of any securities issued by the REMIC or result in a taxation of the income from the Loan to such REMIC or cause a loss of REMIC status, and that Lender has a perfected first priority security interest in the Defeasance Deposit and the U.S. Obligations purchased by Lender on behalf of Borrower; (5) all opinion of a certified public accountant acceptable to Lender to the effect that the Defeasance Deposit is adequate to provide payment on or prior to, but as close as possible to, all successive scheduled payment dates after the Release Date upon which interest and principal payments are required under this Note (including the amounts due on the Maturity Date) and in amounts equal to the scheduled payments due on such dates under this Note; (6) evidence in writing fronn the applicable Rating Agencies to the effect that such release will not result in a re-qualification, reduction or withdrawal of any rating in effect immediately prior to such defeasance for any Securities; (7) payment of all of Lender's expenses incurred in connection with the defeasance including, without limitation, reasonable attorneys fees; and (8) such other" Certificates, C10Cllments or instruments as Lender may reasonably request, In connection with the conditions set forth in subsection (c)(i)(E) above, Borrower hereby appoints Lender as its agent and attorney-in-fact for, the purpose of using the Defeasance Deposit to purchase U.S. Obligations which provide payment on or prior to, but as close as possible to, all successive scheduled payment dates after the Release Date upon which interest and principal payments are required under this Note (including the amounts due on the Maturity Date) and in amounts equal to the scheduled payments due on such dates under this Note (the "Scheduled Defeasance Payments"). Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the U.S. Obligations may be made directly to Lender and applied to satisfy the obligations of the Borrower under this Note. (ii) Upon compliance with the requirements of this subsection (c), the Property shall be released fronn the lien of the Security Instrument and the pledged U.S. Obligations shall be the sole source of collateral securing this Note. Any portion of the De-feasanee Deposit in excess of the amount necessary to purchase the U.S. Obligations S MORGAN GUARANTY TRUST COMPANY (109) 53SI513n3 0? required by subparagraph (c)(i) above and satisfy the Borrower's obligations Linder this subsection (c) shall be remitted to the Borrower with the release of the Property from the lien of the Security Instrument.. (iii) For purposes of this subsection (c), the following tenns shall have the following ill milli ngs: (A) Tile term "Defeasance Deposit" shall mean an amount equal to 100% of the remaining principal amount of this Note, the Yield Maintenance Premium, any costs and expenses incurred or to be incurred in the purchase of the U.S. Obligations necessary to meet the Scheduled Defeasance Payments and any revenue, documentary stamp or intangible taxes or any other tax or charge clue ill connection with the transfer of this Note or otherwise required to accomplish the agreements of this subsection; (B) The term "Yield Maintenance Premium" shall mean the amount (if any) which, when added to tite remaining principal amount of this Note, will be sufficient to purchase U.S. Obligations providing the required Scheduled Defeasance Payments; and (C) The term "U.S. Obligations" shall mean direct non-callable obligations ofthe United States of America. (iv) Upon the release of the Property in accordance with this subsection (c), Borrower shall, at Lender's request, assign all its obligations and rights under this Note, together with the pledged Defeasance Deposit, to a successor special purpose entity designated by Borrower and approved by Lender in its sole discretion.. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower's obligations under this Note and the Security Agreement, in connection with such assignment and assumption, Borrower shall (x) deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and such successor entity in accordance with its terms and that this Note, the security Agreement and the other Loan Documents, as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (y) pay all costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). In connection with such assignment and assumption, Borrower and any Guarantor may be released of personal liability under the Note and the other Loan Documents, but only as to acts or events occurring after the closing of such assignment and assumption. (v) Upon the release of the Property in accordance with this subsection (c), Borrower shall have no further right to prepay this Note pursuant to the other provisions of this Section 7 or othetwise. 6 MORGANGUARANTY TRUST COMPANY (11/04) 53051333 01 8. SAVINGS CLAUSE This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance clue hereunder at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum interest rate which Borrower is permitted by applicable law to contract or agree to pay. If by the teens of this Note, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of such maximum rate, the Applicable Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or, detention of the Debt, shall, to the extent perrrTitted by applicable law, be amortized, prorated, allocated, and spreacl throughout the hill stated term of this Note until payment in full so that the rate or amount of interest on account of the Debt does not exceed the maximum lawful rate of interest from time to time in effect and applicable to the Debt for so long as the Debt is outstanding. Notwithstanding anything to the contrary contained herein or in any of the other Loan DO CUments, it is not the intention of Lender to accelerate the maturity of any interest that has not arenred at the time of such acceleration or to collect unearned interest at the time of such acceleration. 9. WAIVERS (a) Except as specifically provided in the loan Documents, Borrower and any endorsers, sureties or guarantors hereof jointly and severally waive presentment and demand for payment, notice of intent to accelerate maturity, notice of acceleration of maturity, protest and notice of protest and non-payment, all applicable exemption rights, valuation and appraisement, notice of demand, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note and the bringing of suit and diligence in taking any action to collect any sums owing hereunder or in proceeding against any of the rights and collateral securing payment hereof: Borrower and any surety, endorser or guarantor hereof agree (i) that the time for any payments hereunder may be extended from tine to time without notice and consent, (ii) to the acceptance by Lender of further eollateral, (iii) the release by Lender of any existing collateral for the payment of this Note, (iv) to any and all renewals, waivers or modifications that may be granted by lender with respect to the payment or other provisions of this Note, and/or (v) that additional Borrowers, endorsers, guarantors or sureties may become parties hereto all without notice to then and without in any manner affecting their liability under or with respect to this Note. No extension of time for the payrnent of this Note or any installment hereof shall a0ect the liability of Borrower under this Note or any endorser or guarantor hereof even though the Borrower or such endorser or guarantor is not a party to sue1T agreement. (b) Failure of Lender to exercise any of the options granted herein to Lender upon the happening of one or more of the events giving rise to such options shall not constitute a waiver of the right to exercise the same or any other option at any subsequent time in respect to the same or any other event. The acceptance by Lender of any payment hereunder that is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the options grantee] herein to Lender at that time or at any 7 MORGAN GUARANI Y T RUST COMPANY (11/99) 5)051333 01 subsequent time or nullify any prior exercise of any such option without the express written acknowledgment of the Lender. 10. EXCULPATION (a) Notwithstanding; anything in the Loan Documents to the contrary, but subject to the qualifications below, Lender and Borrower agree that: (i) Borrower shall be liable upon the Debt and for the other obligations arising; under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, its affiliates, its agents or its employees or by any Guarantor in connection with the loan evidenced by this Note, (B) of a breach or default under Sections 4.3 or 3_2 of the Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding;, the limitation on recourse set forth in this Subsection l0(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower. (ii) If a default occurs in the timely and proper payment of all or any part of the Debt, beyond applicable grace periods, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in this Note or the Security Instrument by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon the Security Instrument, the Other Loan Documents and the interest in the Property, the Rents and any other collateral given to Lender created by the Security Instrument and the Other Loan Documents; provided, however, that any judgment in any action or proceeding; shall be enforceable against Borrower only to the extent of Borrower's interest in the Property, in the Rents and in any other collateral given to Lender_ Lender, by accepting this Note and the Security Instrument, agrees that it shall not, except as otherwise herein provided, sue for, seek or demand any deficiency judgment against Borrower in any action or proceeding, under or by reason of or under or in connection with this Note, the Other Loan Documents or the Security Instrument. (iii) The provisions of this Subsection I0(a) shall not (A) constitute a waiver, release or impairment of any obligation evidenced or secured by this Note, the Other Loan Documents or the Security Instrument; (B) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (C) affect the validity or enforceability of any indemnity, guaranty, master lease or similar instrument made in connection with this Note, the Security Instrument, or the Other Loan Documents; (D) impair the right of Lender to obtain the appointment of a receiver; (E) impair the enforcement of the Assignment executed in connection herewith; (F) impair the right of Lender to enforce the provisions of Article I I of the Security Instrument; or (G) impair the right of Lender to obtain a deficiency judgment or judgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be 8 MORGAN GUARANTY TRUST COMPANY (I J/99) 53051333 0I entitled under the Security Instrument; provided, however, Lender shall only enforce suelr _judlynent against the insurance proceeds and/or condemnation awards. (iv) Notwithstanding the provisions of this Article to the contrary, Bon-ower shall be personally liable to Lender for the Losses it incurs due to: (A) the misapplication or misappropriation of Rents; (B) the misapplication or misappropriation of insurance proceeds or condemnation awards; (C) Borr'ower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Bonower and not replaced with Personal Propetly of the same utility and of the sank or greater value; (D) any act of actual waste or arson by Bon-ower, any principal, affiliate, general partner or member thereof or by any Guarantor-, (F) any fees or commissions paid by Borrower to any principal, affiliate, general partner or member of Borrower, or any Guarantor in violation of the terms of this Note, the Security Instrument or the Other Loan Documents; (F) Bonrower's failure to comply with the provisions of Section I 1 of the Security Instrument; or (G) any breach of the Environmental Indemnity. (b) Nothing herein shall be deemed to be a waiver of any right which I.ender may have under Sections 506(x), 506(b), I i I I(b) or any other provisions of the Bankruptcy Code to rile a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents. 11. AUTHORITY Borrower (and the undersigned representative of Borrower; if any) represents that Borrower has hall power, authority and legal right to execute, deliver and perform its obligations pursuant to this Note and the other Loan Documents and that this Note and the other Loan Documents constitute legal, valid and binding; obligations of Borrower-. Borrower further represents that the loan evidenced by the Loan Documents was made for business or commercial purposes and not for personal, family or household use. 12. NOTICES All notices or other communications required or permitted to be given pursuant hereto shall be given in the manner and be effective as specified in the Security Instrument, directed to the parties at their respective addresses as provided therein. 13. TRANSFER Lender shall have the unrestricted right at any time or ti-om time to time to sell this Note and the loan evidenced by this Note and the Loan Documents or participation interests therein. BotTower shall execute, acknowledge and deliver any and all instruments requested by Lender to satisfy such purchasers or participants that the unpaid indebtedness evidenced by this Note is outstanding upon the terms and provisions set out in this Note and the other Loan Documents. To the extent, if' any, specified in such assignment or participation, such assignee(s) or participant(s) shall have the rights and benefits with respect to this Note and the other Loan Documents as such assignee(s) or participant(s) would have if they were the Lender hereunder. MORGAN GUARANTY I RUST COMPANY (1 I/9+)) 53051333 01 14. WAIVER OF TRIAL BY JURY BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF .ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE; LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER. 15. APPLICABLE LAW This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, the state in which the real property encumbered by the Security Instrument is located (without regard to any conflict of taws or principles) and the applicable laws of the United States of America. 16. JURISDICTION BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN TIME STATE IN WHIC14 THE PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE. 17. NO ORAL. CHANGE The provisions of this Note and the Loan Documents may be amended or revised only by an instrument in writing signed by the Borrower and Lender. This Note and all tine other L.oan Documents embody the final, entire agreement of Borrower and Lender and supersede any and all prior commitments, agreements, representations and understandings, whether written or oral, relating to the subject matter hereof and thereof and may not be contradicted or varied by I!) MORGAN GOARANT Y TRUST COMPANY t r 1199) 531)51333 01 evidence of prior, contemporaneous or subsequent oral agreements or discussions of Borrower and Lender. There are no oral agreements between Borrower and Lender. 18. BUSINESS TRANSACTION This Note is given in a business transaction. Executed as of the day and year first above written. BORROWER: LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership By: LEXINGTON KINGSTON MAIN INC.., a Delaware corporation, its general partner By: : :?d _ Name: ! Y1Lf? Title: i l MORGAN GUARANTY TRUS1 COMPANY { t 1,99) 5305133301 EXHIBIT B ?V4 01? FEE AND LEASEHOLD MORTGAGE AND SECURIf"I A E Nl U? a 03 THIS FEE AND LEASEHOLD MORTGAGE AND SEC?AGREEMENT (this "Security Instrument") is made as of the _ZL? day of C , 2001, by LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership, having its principal place of business at 355 Lexington Avenue, New York, New York 10017, as mortgagor ("Borrower"), and LEPERCQ CORPORATE INCOME FUND, L. P., having its principal place of business at 355 Lexington Avenue, New York, New York 10017, as grantor ("Fee Owner") to JPMORGAN CHASE BANK, a New York banking corporation, having its principal place of business at 270 Park Avenue, New York, New York 10017, as mortgagee ("Lender"). RECITALS: Borrower by its Fixed Rate Note of even date herewith given to Lender is indebted to Lender in the principal sum of $3,550,000.00 in lawful money of the United States of America (such Fixed Rate Note, together with all extensions, renewals, modifications, substitutions and amendments thereof, shall collectively be referred to as the "Note"), with interest from the date thereof at the rates set forth in the Note, principal and interest to be payable in accordance with the terms and conditions provided in the Note, with a final maturity date of January 1, 2012. Borrower desires to secure the payment of the Debt (as defined in Article 2 and the performance of all of its obligations under the Note and the Other Obligations (as defined in Article ). Fee Owner has executed this Security instrument to mortgage, grant, bargain, sell, pledge, enfeoff, assign, warrant, transfer and convey to Lender all of its right, title and interest in the Property (as hereinafter defined), inclusive of, without limitation, the fee estate in the Land and the Improvements (as hereinafter defined) as security for the Obligations (as hereinafter defined). ARTICLE 1 - GRANTS OF SECURITY Section 1.1 PRQPERTY MORTGAGED. For and in consideration of the sum of ten dollars ($10.00) and other valuable consideration and intending to be legally bound, Fee Owner and Borrower do hereby irrevocably, unconditionally and absolutely mortgage, grant, bargain, sell, pledge, enfeoff, assign, warrant, transfer and convey to Lender, and do hereby grant a first priority security interest to Lender in, the following propcrty, rights, interests and estates now owned, or hereafter acquired, by Borrower (collectively, the "Property"): (a) Iffid. Fee Owner's estate in and to the real property described in Exhibit A attached hereto (collectively, the "Land") and any after acquired title of the Fee Owner in the real property described on Exhibit A, including the ground lessor's interest therein AND all rights, options and privileges of the Borrower as ground lessee under that certain Net Lease dated December Zo, 2001 between Fee Owner and Borrower, a Memorandum of which is recorded in the Public Registry of Cumberland County, Pennsylvania, in SKI 744PGO 178 JPMORGAN CHASE BANK (11/99) 53051501.03 Book at Page , for the premises as described on Exhibit B (the "Ground Lease" and any and all security deposits or other property of Borrower held by the ground lessor pursuant to the terms of or in connection with the Ground Lease together with additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the development, ownership or occupancy of such real property, and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument; (b) Improvements. All of Borrower's Fee Owner's estate in and to the buildings, structures, fixtures, additions, accessions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the "Improvements"); (c) Easements. All of Borrower's and Fee Owner's estate in and to all casements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto; (d) Fixtures and Personal Property. All machinery, equipment, goods, inventory, consumer goods, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature whatsoever owned by Borrower or Fee Owner, or in which Borrower or Fee Owner has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future use, maintenance, enjoyment, operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower or Fee Owner, or in which Borrower or Fee Owner has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the improvements, and the right, title and interest of Borrower or Fee Owner in and to any of the Personal Property (as hereinafter defined) which may be subject to any security interests, as defined in the Uniform Commercial Code of the Commonwealth of Pennsylvania (the "Uniform Commercial Code"), superior in lien to the lien of this Security Instrument and all proceeds and products of the above; (e) Leases and Rents. All leases and other agreements affecting the use, enjoyment or occupancy of the Land and the Improvements heretofore or hereafter 6K 74 4 PU 0179 -2- JPMORAN CHASE BANK (11/99) 53051501.03 TABLE OF CONTIENTS Lame ARTICLE 1-GRANTS OF SECURITY .......................................................................................1 Section 1.1 PROPERTY MORTGAGED ................................................................................. I Section 1.2 ASSIGNMENT OF RENTS .................................................................................... 4 Section 1.3 DEFINITION OF PERSONAL PROPERTY ......................................................... 4 Section 1.4 PLEDGE OF MONIES HELD ............................................................................... 4 ARTICLE 2 - DEBT AND OBLIGATIONS SECURED .......................................................... ...5 Section 2.1 DEBT ..................................................................................................................... .. 5 Section 2.2 OTHER OBLIGATIONS ...................................................................................... .. 5 Section 2.3 DEBT AND OTHER OBLIGATIONS ................................................................. .. 6 Section 2.4 PAYMENTS .......................................................................................................... .. 6 ARTICLE 3 - BORROWER COVENANTS ............................................................................... ...6 Section 3.1 INCORPORATION BY REFERENCE ................................................................ .. 6 Section 3.2 INSURANCE ........................................................................................................ .. 7 Section 3.3 PAYMENT OF TAXES, ETC .............................................................................. 13 Section 3.4 CONDEMNATION ............................................................................................... 13 Section 3.5 USE AND MAINTENANCE OF PROPERTY .................................................... 14 Section 3.6 WASTE ................................................................................................................. 15 Section 3.7 COMPLIANCE WITH LAWS; ALTERATIONS ................................................ 15 Section 3.8 BOOKS AND RECORDS ..................................................................................... 16 Section 3.9 PAYMENT FOR LABOR AND MATERIALS ................................................... 17 Section 3.10 PERFORMANCE OF OTHER AGREEMENTS .............................................. 17 ARTICLE 4 - SPECIAL COVENANTS ...................................................................................... .17 Section 4.1 PROPERTY USE ................................................................................................ 18 Section 4.2 ERISA .................................................................................................................... 18 Section 4.3 SINGLE PURPOSE ENTITY ............................................................................... 18 ARTICLE 5 - REPRESENTATIONS AND WARRANTIES ...................................................... .21 Section 5.1 BORROWER'S REPRESENTATIONS ............................................................... 21 Section 5.2 WARRANTY OF TITLE ...................................................................................... 21 Section 5.3 STATUS OF PROPERTY ..................................................................................... 21 Section 5.4 NO FOREIGN PERSON ....................................................................................... 23 Section 5.5 SEPARATE TAX LOT ......................................................................................... 23 ARTICLE 6 - OBLIGATIONS AND RELIANCES ..................................................................... 23 Section 6.1 RELATIONSHIP OF BORROWER AND LENDER .......................................... 23 Section 6.2 NO RELIANCE ON LENDER ............................................................................. 23 Section 6.3 NO LENDER OBLIGATIONS ............................................................................. 23 Section 6.4 RELIANCE ........................................................................................................... 23 - i - RMORGAN CHASE BANK (11/99) 53051501.03 SK 1 7 4 4 PG 018 0 ARTICLE 7 - FURTHER ASSURANCES ...................................................................................24 Section 7.1 RECORDING FEES .............................................................................................. 24 Section 7.2 FURTHER ACTS .................................................................................................. 24 Section 7.3 CHANGES IN TAX, DEBT CREDIT AND DOCUMENTARY STAMP LAWS ................................................................................................................... 24 Section 7.4 CONFIRMATION STATEMENT ........................................................................ 25 Section 7.5 SPLITTING OF SECURITY INSTRUMENT ...................................................... 25 Section 7.6 REPLACEMENT DOCUMENTS ........................................................................ 26 ARTICLE 8 - DUE ON SALE/ENCUMBRANCE ......................................................................26 Section 8.1 LENDER RELIANCE ........................................................................................... 26 Section 8.2 NO SALE/ENCUMBRANCE ............................................................................... 26 Section 8.3 EXCLUDED AND PERNMED TRANSFERS ................................................. 27 Section 8.4 NO IMPLIED FUTURE CONSENT .................................................................... 29 Section 8.5 COSTS OF CONSENT .......................................................................................... 29 Section 8.6 CONTINUING SEPARATENESS REQUIREMENTS ....................................... 29 ARTICLE 9 - DEFAULT ...............................................................................................................29 Section 9.1 EVENTS OF DEFAULT ...................................................................................... 29 Section 9.2 DEFAULT INTEREST .......................................................................................... 32 ARTICLE 10 - RIGHTS AND REMEDIES .................................................................................32 Section 10.1 REMEDIES ........................................................................................................ 32 Section 10.2 RIGHT OF ENTRY ........................................................................................... 39 ARTICLE 11 - INDEMNIFICATION; SUBROGATION ............................................................39 Section 11.1 GENERAL INDEMNIFICATION .................................................................... 39 Section 11.2 ENVIRONMENTAL INDEMNIFICATION .................................................... 40 Section 11.3 DUTY TO DEFEND AND ATTORNEYS AND OTHER FEES AND EXPENSES ...................................................................................................... 42 Section 11.4 SURVIVAL OF INDEMNITIES ....................................................................... 43 ARTICLE 12 - SECURITY AGREEMENT .................................................................................43 Section 12.1 SECURITY AGREEMENT ............................................................................... 43 ARTICLE 13 - WAIVERS ............................................................................................................44 Section 13.1 MARSHALLING AND OTHER MATTERS ................................................... 44 Section 13.2 WAIVER OF NOTICE ...................................................................................... 44 Section 13.3 SOLE DISCRETION OF LENDER .................................................................. 45 Section 13.4 SURVIVAL ........................................................................................................ 45 ................... Section 13.5 WAIVER OF TRIAL BY JURY .................................................... 45 Section 13.6 WAIVER OF AUTOMATIC OR SUPPLEMENTAL STAY ........................... 46 ARTICLE 14 - NOTICES .............................................................................................................47 Section 14.1 NOTICES ........................................................................................................... 47 i i JPMoRcAm CHASE BANK (11199) 8L 174 4 PG 0181 53051501.03 ARTICLE 15 - APPLICABLE LAW ............................................................................................48 Section 15.1 GOVERNING LAW; JURISDICTION ............................................................. 48 Section 15.2 USURY LAWS ................................ ........ 48 . ........................................................ . Section 15.3 PROVISIONS SUBJECT TO APPLICABLE LAW ......................................... 48 ARTICLE 16 SECONDARY MARKET ....................................................................................49 Section 16.1 TRANSFER OF LOAN ........................................................................................ 49 ARTICLE 17 - COSTS ................................................................................................................. .49 Section 17.1 PERFORMANCE AT BORROWER'S EXPENSE .......................................... 49 Section 17.2 ATTORNEY'S FEES FOR ENFORCEMENT ................................................. 49 ARTICLE 18 - DEFINITIONS .................................................................................................... .49 Section 18.1 GENERAL DEFINITIONS ............................................................................... 49 ARTICLE 19 - MISCELLANEOUS PROVISIONS ... ................................................. ... .50 Section 19.1 NO ORAL CHANGE ......................................................................................... 50 Section 19.2 LIABILITY ........................................................... ..... .. 50 Section 19.3 . . .................................... INAPPLICABLE PROVISIONS ....................................................................... 50 Section 19.4 HEADINGS, ETC .............................................................................................. 50 Section 19.5 DUPLICATE ORIGINALS; COUNTERPARTS .............................................. 50 Section 19.6 NUMBER AND GENDER ................................................................................ 51 Section 19.7 SUBROGATION ................................................................................................ 51 Section 19.8 ENTIRE AGREEMENT .................................................................................... 51 - iii - RMOROAN CHASE BANK (11/99) 53051501.03 8K ! 7 4 4 PG 018 2 INDEX OF DEFINED TERMS Ps¢e ..ADA" ..................................................... . "Applicable Laws" ....................................................................................................................... 14 ..attorneys' fees," ........................................................................................................................... 44 "attorneys" ..................................................................................................................................... 35 ..Bankruptcy Code" ......................................................................................................................... 2 "Borrower" ............................................................................................................... 1 "Business Day .............................................................................................. 42 "Collateral" .................................................................................................................................... 38 ,.counsel fees" ................................................................................................................................ 44 "Debt" .............................................................................................................................................. 4 "Default Rate" .............................................................................................................................. 28 "Environmental Indemnity ............................................................................................................... 6 "Environmental Law" ................................................................................................................... 36 "Environmental Lien" ................................................................................................................... 37 "ERISA" ................................................................................... .. ...................................................16 "Escrow Agreement" ...................................................................................................................... 3 "Event of Default" ......................................................................................................................... 26 "Event" .......................................................................................................................................... 43 "Exculpated Portion" ..................................................................................................................... 34 "fees and expenses"...... ................................................................................................................. 35 "Guarantor" ................................................................................................................................... 17 "Hazardous Substances" ............................................................................................................... 37 "Improvements" .............................................................................................................................. I "Indemnified Parties" .................................................................................................................... 37 "Indemnitor" .................................... . ..................... . ......................................................................... 6 "Insurance Premiums" ..................................................................................................................... 8 "Insured Casualty" .........................................................................................................................10 "Intangibles" ................................................................................................................................... 3 "Investor" ...................................................................................................................................... 43 "Land" ............................................................................................................................................ 1 "Lease" ............................................................................................................................................ 2 "Leases" ........................ .................................... ..........,............,..................................................... 2 "legal fees" .................................................................................................................................... 44 "Lender" .......................................................................................................................................... I "Loan Documents" .......................................................................................................................... 6 "Loan" ........................................................................................................................................... 25 "Losses" ........................................................................................................................................ 37 .. Note" .............................................................................................................................................. 1 "Obligations .................................................................................................................................... 5 "Original Principals" ................................................................................................................... 24 "Other Charges" ............................................................................................................................ 12 "Other Loan Documents" ................................................................................................................ 6 Index - 1 RMORGAN CHASE HANK (11/99) 53051501.03 OK 1 7 4 4 PG 0183 „Other Obligations" ..................................................... "Permitted Exceptions" ...................... ................................ ......................................................... 9 „person" ...................................................... ..-. .................................................. 19 „Personal Property ..............................................................................................,......................... 43 ,policies" ................ ....................... 4 . „Principal" ...........................................................................?.. ?... ?.................................................. 8 "Property" ................................. ..................... ................................................ 17 „Qualified Insurer" ............................... .............................................................................1 „Rating Agency" .......................................................................................................................... 8 „Release" ......................... .................................................................... 43 "Release" on" ............................................................................................................................ 37 „Rents" ........................... .................................................................................... 37 "Security Instrument" ................................................................................................................... 43 „Taxes" ......................... ........................ .........................,.....,..................... 1 "Uniform Commercial rode" ........................................................................................................ 12 Index - 2 JPMGRGAN CHASE BANK (11199) 53051501.03 BK 17 4 4 PG 018 4 Loan No. V_23089 LEXINGTON KINGSTON MAIN L.P., as mortgagor (Borrower) and LEPERCQ CORPORATE INCOME FUND, as grantor to JPMORGAN CHASE BANK, as mortgagee (Lender) FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT Dated: #,P Z , 2001 PREPARED BY AND UPON RECORDATION RETURN TO., Rosenman & Colin LLP 401 South Tryon Street, Suite 2600 Charlotte, North Carolina 28202 Attention: William P. McMillan, Esq. RMORGAN CHASE BANK (11/99) 530515DI.03 BK 17 4 4 PG 0 185 entered into, whether before or after the filing by or against Borrower or Fee Owner of any petition for relief under 11 U.S.C. §101 ft sew, as the same may be amended from time to time (the "Bankruptcy Code") (individually, a "Lease"; collectively, the "Leases") and all right, title and interest of Borrower or Fee Owner, its successors and assigns therein and thereunder, including, without limitation, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents (including all tenant security and other deposits), additional rents, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements whether paid or accruing before or after the filing by or against Borrower or Fee Owner of any petition for relief under the Bankruptcy Code (collectively the "Rents") and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt; (f) Condemnation Awards. All awards or payments, including interest thcreon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property; (g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property; (h) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction; (i) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims; 0) Rights. The right, in the name and on behalf of Borrower or Fee Owner, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Lender in the Property, (k) Agreements. All agreements, contracts (including purchase, sale, option, right of first refusal and other contracts pertaining to the Property), certificates, instruments, franchiscs, permits, licenses, approvals, consents, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Property (including any Improvements or respecting any business or activity conducted on the Land and any part thereof) and all right, title and interest of Borrower or Fee Owner therein and thcreunder, including, without limitation, the right, upon the happening of any default hereunder, to receive and collect any sums payable to Borrower or Fee Owner thereunder; -3. JPMORAN CHASE BANK (11/99) 53051501.03 GK 17 4 4 PG 018 6 (1) Trademarks. All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; (m) Accounts. All accounts, accounts receivable, escrows (including, without limitation, all escrows, deposits, reserves and impounds established pursuant to that certain Escrow Agreement for Reserves and Impounds of even date herewith between Borrower and Lender; hereinafter, the "Escrow Agreement"), documents, instruments, chattel paper, claims, reserves (including deposits) representations, warranties and general intangibles, as one or more of the foregoing terms may be defined in the Uniform Commercial Code, and all contract rights, franchises, books, records, plans, specifications, permits, licenses (to the extent assignable), approvals, actions, ehoses, claims, suits, proofs of claim in bankruptcy and causes of action which now or hereafter relate to, are derived from or are used in connection with the Property, or the use, operation, maintenance, occupancy or enjoyment thereof or the conduct of any business or activities thereon (hereinafter collectively called the "Intangibles"); and. (n) Other Rights. Any and all other rights of Borrower or Fee Owner in and to the Property and any accessions, renewals, replacements and substitutions of all or any portion of the Property and all proceeds derived from the sale, transfer, assignment or financing of the Property or any portion thereof. Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and unconditionally assigns to Lender Borrower's right, title and interest in and to all current and future Leases and Rents; it being intended by Borrower that this assignment constitutes a present, absolute and unconditional assignment and not an assignment for additional security only. Unless provided to the contrary in the Cash Management Agreement between Borrower and Lender of even date herewith (the "Cash Management Agreement'), all payments due under the Leases shall be paid directly by the tenants thereunder to an account controlled by the Lender when such amounts are due and payable. All such payments received in such account shall be applied as set forth in the Cash Management Agreement. The payment of amounts due under the Leases directly to an account controlled by Lender as required by the Cash Management Agreement, this Section 1.2 and by the Assignment of Leases and Rents shall not limit, reduce or otherwise affect Borrower's obligations to make payments of amounts due hereunder and under the other Loan Documents, unless pursuant to the terms of the Cash Management Agreement Lender has received and applied amounts sufficient to make such payments. Section 1.3 DEFINITIQN OF PERSONAL PROPERTY. For purposes of this Security Instrument, the Property identified in Subsections 1.1(d) through 1.1W, inclusive, shall be collectively referred to herein as the "Personal Property." Section 1.4 PLEDGE OF MONIES HELD. Borrower and Fee Owner hereby pledge to Lender any and all monies now or hereafter held by Lender, including, without limitation, any sums deposited in the Funds (as defined in the Escrow Agreement), all insurance proceeds described in Section 3.2 and condemnation awards or payments described in Section 3. 4, as -4- ]PMORAN CHASE BANK (11199) 53051501.03 BK 17 4 4 PG 018 7 additional security for the Obligations until expended or applied as provided in this Security Instrument. CONDITIONS TO GRANT TO HAVE AND TO HOLD the above granted and described Property unto and to the use and benefit of Lender, and the successors and assigns of Lender, forever, PROVIDED, HOWEVER, these presents are upon the express condition that, if Borrower shall well and truly pay to Lender the Debt at the time and in the manner provided in the Note and this Security Instrument, shall well and truly perform the Other Obligations as set forth in this Security Instrument and shall well and truly abide by and comply with each and every covenant and condition set forth herein and in the Note, these presents and the estate hereby granted shall cease, terminate and be void; provided however, that Borrower's obligation to indemnify and hold harmless Lender pursuant to the provisions hereof with respect to matters relating to any period of time during which this Security Instrument was in effect shall survive any such payment or release. ARTICLE 2 - DEBT AND OBLIGATIONS SECURED Section 2.1 DEBT. This Security Instrument and the grants, assignments and transfers made in Article I are given for the purpose of securing the following, in such order of priority as Lender may determine in its sole discretion (the "Debt"): (a) the payment of the indebtedness evidenced by the Note in lawful money of the United States of America; (b) the payment of interest, default interest, late charges and other sums, as provided in the Note, this Security Instrument or the Other Loan Documents (as hereinafter defined); (c) the payment of all other moneys agreed or provided to be paid by Borrower in the Note, this Security Instrument or the Other Loan Documents; (d) the payment of all sums advanced pursuant to this Security Instrument to protect and preserve the Property and the lien and the security interest created hereby; and (e) the payment of all sums advanced and costs and expenses incurred by Lender in connection with the Debt or any part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender. Section 2.2 OTHER OBLIGATIONS. This assignments and transfers made in Article 1 are also following (the "Other Obligations"): Security Instrument and the grants, given for the purpose of securing the -5- 7PMORAN CHASE HANK (11199) 33051501.03 BK 1 7 4 4 PG 018 8 (a) the performance of all other obligations of Borrower and/or Fee Owner contained herein; (b) the performance of each obligation of Borrower and/or Fee Owner contained in any other agreement given by Borrower and/or Fee Owner to Lender which is for the purpose of further securing the obligations secured hereby, and any amendments, modifications and changes thereto; and (c) the performance of each obligation of Borrower and/or Fee Owner contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of the Note, this Security Instrument or the Other Loan Documents. Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the payment of the Debt and the performance of the Other Obligations shall be referred to collectively herein as the "Obligations." Section 2.4 PAYMENTS. Unless payments are made in the required amount in immediately available funds at the place where the Note is payable, remittances in payment of all or any part of the Debt shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by Lender in funds immediately available at the place where the Note is payable (or any other place as Lender, in Lender's sole discretion, may have established by delivery of written notice thereof to Borrower) and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or banks. Acceptance by Lender of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and the failure to pay the entire amount then due shall be and continue to be an Event of Default (as hereinafter defined). ARTICLE 3 - BORROWER COVENANTS Borrower covenants and agrees that: Section 3.1 INCORPORATION BY REFERENCE. All the covenants, conditions and agreements contained in (a) the Note, and (b) all and any of the documents other than the Note or this Security Instrument now or hereafter executed by Borrower and/or others and by or in favor of Lender in connection with the creation of the Obligations, the payment of any other sums owed by Borrower to Lender or the performance of any Obligations (collectively the "Other Loan Documents"), are hereby made a part of this Security Instrument to the same extent and with the same force as if fully set forth herein. The term "Loan Documents" as used herein shall individually and collectively refer to the Note, this Security Instrument and the Other Loan Documents; provide d, however, that notwithstanding any provision of this Security Instrument to the contrary, the Obligations of the Borrower under that certain Environmental Indemnity Agreement of even date herewith executed by Borrower in favor of Lender (the "Environmental Indemnity") shalt not be deemed or construed to be secured by this Security Instrument or otherwise restricted or affected by the foreclosure of the lien hereof or any other exercise by OK I 7 4 t PC O 18 96 - JPMORAN CHASE BANK (i IM) 5305150t.03 Lender of its remedies hereunder or under any other Loan Document, such Environmental Indemnity being intended by the signatories thereto to be its (or their) unsecured obligation. Section 3.2 INSURANCE. (a) Borrower shall obtain and maintain or cause its tenant(s) to obtain and maintain, and shall pay all premiums in accordance with Subsection 3.2(b) below for or cause its tenant(s) to pay such premiums, insurance for Borrower and the Property providing at least the following coverages: (i) comprehensive all risk insurance (including, without limitation, riot and civil commotion, vandalism, malicious mischief, water, fire, burglary and theft) on the Improvements and the Personal Property and in each case (A) in an amount equal to 100% of the "Full Replacement Cost," which for purposes of this Security Instrument shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing that the deductible shall not exceed the lesser of $10,000.00 or one percent (10/6) of the face value of the policy; and (D) containing Demolition Costs, Increased Cost of Construction and "Ordinance or Law Coverage" or "Enforcement" endorsements in amounts satisfactory to Lender if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses or the ability to rebuild the Improvements is restricted or prohibited. The Full Replacement Cost may be redetermined from time to time by an appraiser or contractor designated and paid by Lender or by an engineer or appraiser in the regular employ of the insurer. No omission on the part of Lender to request any such appraisals shall relieve Borrower of any of its obligations under this Subsection; (ii) comprehensive general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called "occurrence" form with a combined single limit of not less than $1,000,000.00 and not less than $3,000,000.00 if the Property has one or more elevators, as well as liquor liability insurance in a minimum amount of $2,000,000.00 if any part of the Property is covered by a liquor license and an aggregate coverage limit acceptable to Lender, (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an "if any" basis; (3) independent contractors; (4) blanket contractual liability for all written and oral contracts; (5) contractual liability covering the indemnities contained in Article 11 hereof to the extent the same is available; and (D) to be without deductible, Borrower's tenant on the entirety of the Property may self-insure with respect to the comprehensive general liability so long as its long-term senior debt rating is not less than BBB as determined by A.M. Best Company; -7- JPMORAN CHASE BANK (11/99) 33051501.03 BKI744PGO190 business income insurance (A) with loss payable to Lender, (B) covering losses of income and Rents derived from the Property and any non- insured property on or adjacent to the Property resulting from any risk or casualty whatsoever; (C) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date of the loss, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) in an amount equal to 100% of the projected gross income from the Property for a period of twelve (12) months. The amount of such business income insurance shall be determined by Lender prior to the date hereof and at least once each year thereafter based on Borrower's reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period. All insurance proceeds payable to Lender pursuant to this Subsection 3.2(a) shall be held by Lender and shall be applied to the obligations secured hereunder from time to time due and payable hereunder and under the Note; pMd, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured hereunder on the respective dates of payment provided for in the Note except to the extent such amounts are actually paid out of the proceeds of such business income insurance; (iv) at all times during which structural construction, repairs or alterations arc being made with respect to the Improvements: (A) owner's contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in Subsection 3.2(-axi) written in a so-called builder's risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to Subsection 3.2(a)(il, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions; (v) workers' compensation, subject to the statutory limits of the state in which the Property is located, and employer's liability insurance with a limit of at least $1,000,000.00 per accident and per disease per employee, and $1,000,000.00 for disease aggregate in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable); (vi) comprehensive boiler and machinery insurance (without exclusion for explosion), if applicable, in amounts as shall be reasonably required by Lender and covering all boilers or other pressure vessels, machinery and equipment located at or about the Property (including, without limitation, electrical equipment, sprinkler systems, heating and air conditioning equipment, refrigeration equipment and piping); BK 17 4 4 PG 0191- 8- >PMORAN CHASE BANK (11199) 53051501.03 (vii) flood hazard insurance if any portion of the Improvements is currently or at any time in the future located in a federally designated "special flood hazard area," flood hazard insurance in an amount equal to the lesser of (a) the outstanding principal balance of the Note, (b) the Full Replacement Cost, or (c) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (viii) such other insurance and in such amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located, including, without limitation, earthquake insurance (in the event the Property is located in an area with a high degree of seismic activity), sinkhole insurance, mine subsidence insurance and environmental insurance. (b) All insurance provided for in Subsection 3.2(al hereof shall be obtained under valid and enforceable policies (the "Policies" or in the singular, the "Policy"), in such forms and, from time to time after the date hereof in such amounts as may from time to time be satisfactory to Lender, issued by financially sound and responsible insurance companies authorized to do business in the state in which the Property is located as admitted or unadmitted carriers which, in either case, have been approved by Lender and which have a claims paying ability rating of A or better issued by Standard & Poor's Ratings Group or with a claims paying ability rating otherwise acceptable to Lender (each such insurer shall be referred to below as a "Qualified Insurer"). Such Policies shall not be subject to invalidation due to the use or occupancy of the Property for purposes more hazardous than the use of the Property at the time such Policies were issued. Not less than thirty (30) days prior to the expiration dates of the Policies or Certificates evidencing the coverages required by this Section 3.2(a) frnished theretofore to Lender pursuant to Subsection 12(a). certificates evidencing the coverages required by this Section 3.2(a) accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the "Insurance Premiums"), shall be delivered by Borrower to Lender. (c) Borrower shall not obtain (i) separate insurance concurrent in form or contributing in the event of loss with that required in Subsection 3.2(a) to be furnished by, or which may be reasonably required to be furnished by, Borrower, or (ii) any umbrella or blanket liability or casualty Policy unless, in each case, Lender's interest is included therein as provided in this Security Instrument and such Policy is issued by a Qualified Insurer. If Borrower obtains separate insurance or an umbrella or a blanket Policy, Borrower shall notify Lender of the same and shall cause certified copies of each Policy to be delivered as required in Subsection 3.2(a?. Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Subsection 3.2(a). -9- JPMORAN CHASE BANK (11/99) 53051501.03 Bit 1 7 4 4 PG O 192 (d) All Policies of insurance provided for or contemplated by Subsection 3.2(? shall name Lender, its successors and assigns, including any servicers, trustees or other designees of Lender, and Borrower as the insured or additional insured, as their respective interests may appear, and in the case of property damage, boiler and machinery, and flood insurance, shall contain a so-called New York standard non- contributing Lender clause in favor of Lender providing that the loss thereunder shall be payable to Lender. (e) All Policies of insurance provided for in Subsection 3.2(a) shall contain clauses or endorsements to the effect that: (i) no act or negligence of Borrower, or anyone acting for Borrower, or of any tenant under any Lease or other occupant, or failure to comply with the provisions of any Policy which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned; (ii) the Policy shall not be materially changed (other than to increase the coverage provided on the Property thereby) or canceled without at least thirty (30) days' prior written notice to Lender and any other party named therein as an insured; (iii) each Policy shall provide that the issuers thereof shall give written notice to Lender if the Policy has not been renewed thirty (30) days prior to its expiration; and (iv) Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder. (0 Borrower shall furnish to Lender within ten (10) calendar days after Lender's request therefor, a statement certified by Borrower or a duly authorized officer of Borrower of the amounts of insurance maintained in compliance herewith, of the risks covered by such insurance and of the insurance company or companies which carry such insurance and, if requested by Lender, verification of the adequacy of such insurance by an independent insurance broker or appraiser acceptable to Lender. (g) If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right but not the obligation, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate, and all expenses incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and until paid shall be secured by this Security Instrument and shall bear interest at the Default Rate (as hereinafter defined). -10- JPMORAN CHASE BANK (11/99) 53051501.03 BK 17 4 4 PG 019 3 (h) If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty, Borrower shall give prompt notice thereof to Lender. (i) In case of loss covered by Policies, Lender may either (1) settle and adjust any claim without the consent of Borrower, or (2) allow Borrower to agree with the insurance company or companies on the amount to be paid upon the loss; rovi that Borrower may adjust losses aggregating not in excess of $200,000.00 if such adjustment is carried out in a competent and timely manner, and provided that in any case Lender shall and is hereby authorized to collect and receive any such insurance proceeds; and the reasonable expenses incurred by Lender in the adjustment and collection of insurance proceeds shall become part of the Debt and be secured hereby and shall be reimbursed by Borrower to Lender upon demand (unless deducted by and reimbursed to Lender from such proceeds). (ii) In the event of any insured damage to or destruction of the Property or any part thereof (herein called an "Insured Casualty"), if (A) in the reasonable judgment of Lender, the Property can be restored within six (6) months after insurance proceeds are made available and at least six (6) months prior to the Maturity Date (as defined in the Note) to an economic unit not less valuable (including an assessment by Lender of the impact of the termination of any Leases due to such Insured Casualty) and not less useful than the same was prior to the Insured Casualty, and after such restoration will adequately secure the outstanding balance of the Debt, and (B) no Event of Default (hereinafter defined) shall have occurred and be then continuing, then the proceeds of insurance shall be made available to Borrower for the cost of restoring, repairing, replacing or rebuilding the Property or part thereof subject to Insured Casualty, as provided below; and Borrower hereby covenants and agrees forthwith to commence and diligently to prosecute such restoring, repairing, replacing or rebuilding; provided• ow , in any event Borrower shall pay all costs (and if required by Lender, Borrower shall deposit the total thereof with Lender in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds of insurance made available pursuant to the terms hereof. (iii) Except as provided above, the proceeds of insurance collected upon any Insured Casualty shall, at the option of Lender in its sole discretion, be applied to the payment of the Debt or be made available to Borrower to pay for the cost of restoring, repairing, replacing or rebuilding the Property or part thereof subject to the Insured Casualty, in the manner set forth below. Any such application to the Debt shall not be considered a voluntary prepayment requiring payment of the prepayment consideration provided in the Note, and shall not reduce or postpone any payments otherwise required pursuant to the Note, other than the final payment on the Note. (iv) If proceeds of insurance, if any, are made available to Borrower for the restoring, repairing, replacing or rebuilding of the Property, Borrower hereby covenants to restore, repair, replace or rebuild the same to be of - 11 - JPMORAN CHASE BANK (11/99) 53051501.03 BK 17 4 4 PG 0194 at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law and plans and specifications approved in advance by Lender. (v) If Borrower is entitled to disbursement out of insurance proceeds held by Lender, such proceeds shall be disbursed from time to time upon Lender being furnished with (1) evidence satisfactory to it (which evidence may include inspections] of the work performed) that the restoration, repair, replacement and rebuilding covered by the disbursement has been completed in accordance with plans and specifications approved by Lender, (2) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (3) funds, or, at Lender's option, assurances satisfactory to Lender that such funds are available, sufficient in addition to the proceeds of insurance to complete the proposed restoration, repair, replacement and rebuilding, and (4) such architect's certificates, waivers of lien, contractor's sworn statements, title insurance endorsements, bonds, plats of survey and such other evidences of cost, payment and performance as Lender may reasonably require and approve; and Lender may, in any event, require that all plans and specifications for such restoration, repair, replacement and rebuilding be submitted to and approved by Lender prior to commencement of work. With respect to disbursements to be made by Lender: (A) no payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; (B) funds other than proceeds of insurance shall be disbursed prior to disbursement of such proceeds; and (C) at all times, the undisbursed balance of such proceeds remaining in the hands of Lender, together with funds deposited for that purpose or irrevocably committed to the satisfaction of Lender by or on behalf of Borrower for that purpose, shall be at least sufficient in the reasonable judgment of Lender to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien and the costs described in Subsection 3.2(h)(vi) below. Any surplus which may remain out of insurance proceeds held by Lender after payment of such costs of restoration, repair, replacement or rebuilding shall be paid to any party entitled thereto. In no event shall Lender assume any duty or obligation for the adequacy, form or content of any such plans and specifications, nor for the performance, quality or workmanship of any restoration, repair, replacement and rebuilding. (vi) Notwithstanding anything to the contrary contained herein, the proceeds of insurance reimbursed to Borrower in accordance with the terms and provisions of this Security Instrument shall be reduced by the reasonable costs (if any) incurred by Lender in the adjustment and collection thereof and in the reasonable costs incurred by Lender of paying out such proceeds (including, without limitation, reasonable attorneys' fees and costs paid to third parties for inspecting the restoration, repair, replacement and rebuilding and reviewing the plans and specifications therefor). BK 7 PG p 9, -12- JPMORAN CHASE HANx(11/99) 53051501.03 Section 3.3 PAYMENT F TAXES, (a) Borrower shall pay or cause its tenant(s) to pay all taxes, assessments, water rates, sewer rents, governmental impositions, and other charges, including without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Land, now or hereafter levied or assessed or imposed against the Property or any part thereof (the "Taxes"), all ground rents, maintenance charges and similar charges, now or hereafter levied or assessed or imposed against the Property or any part thereof (the "Other Charges"), and all charges for utility services provided to the Property as same become due and payable. Borrower will deliver to Lender, promptly upon Lender's request, evidence satisfactory to Lender that the Taxes, Other Charges and utility service charges have been so paid or are not then delinquent. Borrower shall not allow and shall promptly cause to be paid and discharged any lien or charge whatsoever which may be or become a lien or charge against the Property. Except to the extent sums sufficient to pay all Taxes and Other Charges have been deposited with Lender in accordance with the terms of this Security Instrument, Borrower shall furnish to Lender paid receipts for the payment of the Taxes and Other Charges prior to the date the same shall become delinquent. (b) After prior written notice to Lender, Borrower or its tenant(s), at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any of the Taxes, Rrovi cd that (i) no Event of Default has occurred and is continuing under the Note, this Security Instrument or any of the Other Loan Documents, (ii) Borrower is permitted to do so under the provisions of any other mortgage, deed of trust or deed to secure debt affecting the Property, (iii) such proceeding shall suspend the collection of the Taxes from Borrower and from the Property or Borrower shall have paid all of the Taxes under protest, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (v) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (vi) Borrower or Tenant shall have set aside and deposited with Larder adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid all of the Taxes under protest, and (vii) Borrower shall have furnished the security as may be required in the proceeding, or as may be requested by Lender to insure the payment of any contested Taxes, together with all interest and penalties thereon. Section 3.4 CONDEMNATION. Borrower shall promptly give; Lender notice of the actual or threatened commencement of any condemnation or eminent domain proceeding and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender is hereby irrevocably appointed as Borrower's and Fee Owner's attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any award or payment for said condemnation or eminent domain and to make any compromise or settlement in connection with such proceeding, subject to the provisions of this Security Instrument. Notwithstanding any taking by any public or quasi-public authority through eminent domain or otherwise (including -13- JPMORAN CHASE HANK (1 V99) 53051501.03 BK 17 4 4 pG 019 6 but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Debt shall not be reduced until any award or payment therefor shall have been actually received and applied by Lender, after the deduction of reasonable expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the award by the condemning authority but shall be entitled to receive out of the award interest at the rate or rates provided herein or in the Note. Borrower and Fee Owner shall cause the award or payment made in any condemnation or eminent domain proceeding, which is payable to Borrower or Fee Owner, to be paid directly to Lender. Lender may apply any award or payment to the reduction or discharge of the Debt whether or not then due and payable (such application to be free from any prepayment consideration provided in the Note, except that if an Event of Default, or an event which with notice and/or the passage of time, or both, would constitute an Event of Default, has occurred, then such application shall be subject to the full prepayment consideration computed in accordance with the Note). If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the award or payment, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the award or payment, or a portion thereof sufficient to pay the Debt. In the event of a condemnation of less than 10% (in terms of fair market value) of the Property which does not directly affect any of the buildings on the Property, if (A) in the reasonable judgment of Lender, the Property can be restored within nine (9) months after award or payment on account of such condemnation is made available to an economic unit not less valuable and not less useful than the same was prior to the condemnation, and after such restoration will adequately secure the outstanding balance of the Debt, (B) no Event of Default (hereinafter defined) shall have occurred and be then continuing, and (C) neither the Borrower nor any tenant on the Property shall have terminated any lease because of such condemnation, then the proceeds of condemnation shall be made available by Lender to Borrower to pay for the cost of restoring, repairing, replacing or rebuilding the Property or part thereof subject to condemnation in the manner specified for restoration following an Insured Casualty; and Borrower hereby covenants and agrees forthwith to commence and diligently to prosecute such restoring, repairing, replacing or rebuilding; provided, however, in any event Borrower shall pay all costs (and if required by Lender, Borrower shall deposit the total thereof with Lender in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds of condemnation made available pursuant to the terms hereof. Section 3.5 115E AND MADUENANCE OF PROPERTY. Borrower shall cause the Property to be maintained and operated in a good and safe condition and repair subject to normal wear and tear and in keeping with the condition and repair of properties of a similar use, value, age, nature and construction. Borrower shall not use, maintain or operate the Property in any manner 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. The Improvements and the Personal Property shall not be removed, demolished or materially altered (except for normal replacement of the Personal Property with items of the same utility and of equal or greater value) without the prior written consent of Lender. Borrower shall promptly repair, replace or rebuild any part of the Property which may be destroyed by any casualty, or become damaged, worn or dilapidated or which may be affected by any proceeding of the character referred to in Section 3.4 hereof and shall complete and pay for any structure at any -14- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 7 4 4 PG 0 197 time in the process of construction or repair on the Land in accordance with the provisions of Section 3.2, above. Borrower shall not initiate, join in, acquiesce in, or consent to any change in any private restrictive covenant, zoning law or other public or private restriction, limiting or defining the uses which may be made of the Property or any part thereof If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or abandoned without the express written consent of Lender. Borrower shall not take any steps whatsoever to convert the Property, or any portion thereof, to a condominium or cooperative form of management. Section 3.6 WASTE, Borrower shall not commit or suffer any actual waste of the Property or, without first obtaining such additional insurance as may be necessary to cover a proposed change in use of the Property, make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security of this Security Instrument. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Land, regardless of the depth thereof or the method of mining or extraction thereof. Section 3.7 COMPLIANCE WITH LAW&ALTERATIONS. (a) Borrower shall promptly comply or shall cause its tenant(s) to comply with all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations or court orders affecting or which may be interpreted to affect the Property, or the use thereof, including, but not limited to, the Americans with Disabilities Act (the "ADA") (collectively "Applicable Laws"). (b) Notwithstanding any provisions set forth herein or in any document regarding Lender's approval of alterations of the Property, Borrower shall not alter the Property in any manner which would increase Borrower's responsibilities for compliance with Applicable Laws without the prior written approval of Lender. Lender's approval of the plans, specifications, or working drawings for alterations of the Property shall create no responsibility or liability on behalf of Lender for their completeness, design, sufficiency or their compliance with Applicable Laws. The foregoing shall apply to tenant improvements constructed by Borrower or by any of its tenants. Lender may condition any such approval upon receipt of a certificate of compliance with Applicable Laws from an independent architect, engineer, or other person acceptable to Lender. (c) Borrower shall give prompt notice to Lender of the receipt by Borrower of any notice related to a violation of any Applicable Laws and of the commencement of any proceedings or investigations which relate to compliance with Applicable Laws. (d) Borrower shall take appropriate measures to prevent and will not engage in or knowingly permit any illegal activities at the Property. -15- JPMORANCHASE BANK(11199) 53051501.03 BK 17 4 4 PG 019 8 Section 3.8 BOOKS AND RECORDS, (a) Borrower shall keep accurate books and records of account in accordance with sound accounting principles in which full, true and correct entries shall be promptly made with respect to Borrower, the Property and the operation thereof, and will permit all such books and records (including without limitation all contracts, statements, invoices, bills and claims for labor, materials and services supplied for the construction, repair or operation to Borrower of the Improvements) to be inspected or audited and copies made by Lender and its representatives during normal business hours and at any other reasonable times provided that unless an Event of Default shall have occurred, Lender shall give Borrower reasonable prior notice of any such inspection and audit. Lender shall use reasonable efforts to minimize interference with Borrower's business operations at the Property or at its chief executive offices. Borrower represents that its chief executive office is as set forth in the introductory paragraph of this Security Instrument and that all books and records pertaining to the Property are maintained at the Property or such other location as may be expressly disclosed to Lender in writing. Borrower will furnish, or cause to be furnished, to Lender on or before forty-five (45) calendar days after the end of each calendar quarter the following items, each certified by Borrower as being true and correct, in such format and in such detail as Lender or its servicer may request: (i) upon request by Lender, a written statement (rent roll) dated as of the last day of each such calendar quarter identifying each of the Leases by the term, space occupied, rental required to be paid (including percentage rents and tenant sales), security deposit paid, any rental concessions, all rent escalations, any rents paid more than one (1) month in advance, any special provisions or inducements granted to tenants, any taxes, maintenance and other common charges paid by tenants, all vacancies and identifying any defaults or payment delinquencies thereunder; and (ii) quarterly and year-to-date operating statements prepared for each calendar quarter during each such reporting period detailing the total revenues received, total expenses incurred, total cost of all capital improvements, total debt service and total cash flow. (b) Within ninety (90) calendar days following the end of each calendar year, Borrower shall furnish a statement of the financial affairs and condition of the Borrower and the Property including a statement of profit and loss for the Property in such format and in such detail as Lender or its servicer may reasonably request, and setting forth the financial condition and the income and expenses for the Property for the immediately preceding calendar year prepared by an independent certified public accountant. Borrower shall deliver to Lender copies of all income tax returns, requests for extension and other similar items contemporaneously with its delivery of same to the Internal Revenue Service. (c) Borrower will permit representatives appointed by Lender, including independent accountants, agents, attorneys, appraisers and any other persons, to visit and -16- IPMORAN CHASE BANK (11199) 33051301.03 BK 17 4 4 PG 019 9 inspect during its normal business hours and at any other reasonable times (provided that unless an Event of Default shall have occurred, Lender shall give Borrower reasonable prior notice of any such visit and inspection) any of the Property and to make photographs thereof, and to write down and record any information such representatives obtain, and shall permit Lender or its representatives to investigate and verify the accuracy of the information furnished to Lender under or in connection with this Security Instrument or any of the Other Loan Documents and to discuss all such matters with its officers, employees and representatives. Borrower will furnish to Lender at Borrower's expense all evidence which Lender may from time to time reasonably request as to the accuracy and validity of or compliance with all representations and warranties made by Borrower in the Loan Documents and satisfaction of all conditions contained therein. Any inspection or audit of the Property or the books and records of Borrower, or the procuring of documents and financial and other information, by or on behalf of Lender, shall be at Borrower's expense and shall be for Lenders protection only, and shall not constitute any assumption of responsibility or liability by Lender to Borrower or anyone else with regard to the condition, construction, maintenance or operation of the Property, nor Lender's approval of any certification given to Lender nor relieve Borrower of any of Borrower's obligations. (d) Prior to the transfer of the Loan by Lender pursuant to Section 16.1 hereof, Borrower shall deliver to Lender the reports required by Section 3.8(a) on a monthly basis. Such reports shall be delivered within twenty (20) calendar days after the end of each calendar month. Section 3.9 PAYMENT FOR LABOR AND MATERIALS. Borrower will or will cause its tenant(s) to promptly pay when due all bills and costs for labor, materials, and specifically fabricated materials incurred in connection with the Property and never permit to exist beyond the due date thereof in respect of the Property or any part thereof any lien or security interest, even though inferior to the liens and the security interests hereof, and in any event never permit to be created or exist in respect of the Property or any part thereof any other or additional lien or security interest other than the liens or security interests hereof, except for the Permitted Exceptions (as hereinafter defined) and except for any claim for costs of labor and materials which is being contested in good faith by appropriate proceedings diligently pursued and as to which Borrower shall have provided a bond for satisfaction in full of such claim. Section 3.10 PERFORMANCE OF OTHER AGREEMENTS. Borrower and/or Fee Owner shall observe and perform each and every term to be observed or performed by Borrower pursuant to the terms of any agreement or recorded instrument affecting or pertaining to the Property, or given by Borrower and/or Fee Owner to Lender for the purpose of further securing an obligation secured hereby and any amendments, modifications or changes thereto. ARTICLE 4 - SPECIAL COVENANTS Borrower covenants and agrees that: -17- JPMORAN CHASE BANK (11/99) 53051501.03 BK 17 4 4 PG 0 2 0 0 Section 4.1 PROPERTY USE. The Property shall be used only for a warehouse and office building, and for no other use without the prior written consent of Lender, which consent may be withheld in Lender's sole and absolute discretion. Section 4.2 ERISA. (a) It shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Security Instrument and the Other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). (b) It shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Security Instrument, as requested by Lender in its sole discretion, that (i) Borrower is not an "employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true: (i) Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. § 2510.3-101(b)(2); (ii) Less than twenty-five percent (251%) of each outstanding class of equity interests in Borrower are held by "benefit plan investors" within the meaning of 29 C.F.R. § 2510.3.101(f)(2); or (iii) Borrower qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. § 2510.3-101(c) or (e) or an investment company registered under The Investment Company Act of 1940. Section 4.3 SINGLE PURPOSE ENTITY. Borrower covenants and agrees that it has not and shall not: (a) engage in any business or activity other than the acquisition, ownership, operation and maintenance of the Property, and activities incidental thereto; (b) acquire or own any material asset other than (i) the Property, and (ii) such incidental Personal Property as may be necessary for the operation of the Property; (c) merge into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case Lender's consent; (d) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, amend, modify, terminate or BVW 17 4 4 PG 0 2' IPMORAN CHASE BANK (11/99) 53051501.03 fail to comply with the provisions of Borrower's Partnership Agreement, Articles or Certificate of Incorporation, Articles of Organization, Operating Agreement or similar organizational documents, as the case may be; (e) own any subsidiary or make any investment in or acquire the obligations or securities of any other person or entity without the consent of Lender; (f) commingle its assets with the assets of any of its partner(s), members, shareholders, affiliates, or of any other person or entity or transfer any assets to any such person or entity other than distributions on account of equity interests in the Borrower permitted hereunder and properly accounted for; (g) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Debt, except unsecured trade and operational debt incurred with trade creditors in the ordinary course of its business of owning and operating the Property in such amounts as are normal and reasonable under the circumstances, provided that such debt is not evidenced by a note and is paid when due and provided in any event the outstanding principal balance of such debt shall not exceed at any one time one percent (M) of the outstanding Debt; (h) allow any person or entity to pay its debts and liabilities (except a Guarantor or Indemnitor) or fail to pay its debts and liabilities solely from its own assets; (i) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other person or entity or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Property is actually owned by the Borrower, 0) enter into any contract or agreement with any shareholder, partner, member, principal or affiliate of Borrower, any guarantor of all or a portion of the Debt (a "Guarantor") or any shareholder, partner, member, principal or affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or affiliate thereof, (k) seek dissolution or winding up, in whole or in part; (1) fail to correct any known misunderstandings regarding the separate identity of Borrower; (m) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another person or entity or allow any person or entity to hold itself out to be -19- JPMORAN CHASE BANK (11/99) 53051507.03 BK 17 4 4 PG 0 2 0 2 responsible or pledge its assets or credit worthiness for the debts of the Borrower (except for a Guarantor or lndemnitor); (n) make any loans or advances to any third party, including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or affiliate thereof; (o) fail to use separate contracts, purchase orders, stationary, invoices and checks; (p) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the debts of any thud party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or affiliate thereof); (q) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses; (r) allow any person or entity to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations; (s) fail to 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; (t) file a voluntary petition or otherwise initiate proceedings to have the Borrower or any general partner or managing member adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower or any general partner or managing member, or file a petition seeking or consenting to reorganization or relief of the Borrower or any general partner or managing member as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to the Borrower or any general partner or managing member; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Borrower or any general partner or managing member or of all or any substantial part of the properties and assets of the Borrower or any general partner or managing member, or make any general assignment for the benefit of creditors of the Borrower or any general partner or managing member, or admit in writing the inability of the Borrower or any general partner or managing member to pay its debts generally as they become due or declare or effect a moratorium on the Borrower or any general partner or managing member debt or take any action in furtherance of any such action; (u) share any common logo with or hold itself out as or be considered as a department or division of (i) any shareholder, partner, principal, member or affiliate of -20- IPMORAN CHASE BANK (11/99) 53051501.03 OK 1 7 4 4 PG 0 2 0 3 Borrower, (ii) any affiliate of a shareholder, partner, principal, member or affiliate of Borrower, or (iii) any other person or entity or allow any person or entity to identify the Borrower as a department or division of that person or entity, or (v) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of the Borrower or the creditors of any other person or entity. ARTICLE 5 - REPRESENTATIONS AND WARRANTIES Section 5.1 BORROWER'S REPRESENTATIONS. Borrower represents and warrants to Lander that each of the representations and warranties set forth in that certain Closing Certificate of even date herewith executed by Borrower in favor of Lender are true and correct as of the date hereof and are hereby incorporated and restated in this Security Instrument by this reference. Section 5.2 WARRANTY OF TITLE. Each of Borrower and Fee Owner represent and warrant that it has good and marketable fee and leasehold title to the Property, as applicable, and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and that each possesses an unencumbered fee or leasehold estate as applicable in the Land and the Improvements and that it owns its interest in the Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions shown in the title insurance policy insuring the lien of this Security Instrument (the "Permitted Exceptions"). Borrower shall, at its sole cost and expense, forever warrant, defend and preserve the title and the validity and priority of the lien of this Security Instrument and shall, at its sole cost and expense, forever warrant and defend the same to Lender against the claims of all persons whomsoever. Section 5.3 STATUS OF PROPER (a) No portion of the improvements is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower has obtained and will maintain the insurance prescribed in Section hereof. (b) Borrower has obtained all necessary certificates, permits, licenses and other approvals, governmental and otherwise, necessary for the use, occupancy and operation of the Property and the conduct of its business (including, without limitation, certificates of completion and certificates of occupancy) and all required zoning, building code, land use, environmental and other similar permits or approvals, all of which are in full force and effect as of the date hereof and not subject to revocation, suspension, forfeiture or modification. (e) The Property and the present and contemplated use and occupancy thereof are to the best knowledge of Borrower in full compliance with all Applicable Laws, including, without limitation, zoning ordinances, building codes, land use and -21- ]PMORAN CHASE BANK (11199) 53051501.03 gKI744pG020 environmental laws, laws relating to the disabled (including, but not limited to, the ADA) and other similar laws. (d) The Property is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the Property has accepted or is equipped to accept such utility service. (e) All public roads and streets necessary for service of and access to the Property for the current or contemplated use thereof have been completed, are serviceable and are physically and legally open for use by the public. (0 The Property is served by public water and sewer systems. (g) The Property is free from damage caused by fire or other casualty. There is no pending or, to the best knowledge of Borrower, threatened condemnation proceedings affecting the Property or any portion thereof. (h) All costs and expenses of any and all labor, materials, supplies and equipment used in the construction of the Improvements have been paid in full and no notice of any mechanics' or matcrialmen's liens or of any claims of right to any such liens have been received. (i) Borrower has paid in full for, and is the owner of, all finnishings, fixtures and equipment (other than tenants' property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except the lien and security interest created hereby. 0) All liquid and solid waste disposal, septic and sewer systems located on the Property are to the best knowledge of Borrower in a good and safe condition and repair and in compliance with all Applicable Laws. (k) All Improvements lie within the boundary of the Land. (1) The Property will be managed solely by at will employees of the Borrower, or by the tenant under the Lease, and no property manager shall be retained or appointed without the prior written consent of Lender. Such property manager and any property management agreement shall be satisfactory to Lender in its sole discretion, and as a condition to Lender's approval such property manager shall execute and deliver a lien waiver and subordination agreement satisfactory to Lender in its sole discretion which also provides Lender the right, at its option, to terminate the property management agreement or assume Borrower's obligations thereunder upon an Event of Default. -22- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 7 4 4 PG 0 2 0 5 Section 5.4 NO FOREIGN PERSON. Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations. Section 5.5 SEPARATE TAX LOT. The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof. ARTICLE 6 - OBLIGATIONS AND RELIANCES Section 6.1 RELATIONSHIP OF BORROWER AND LENDER, The relationship between Borrower and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower, and no term or condition of any of the Note, this Security Instrument and the other Loan Documents shall be construed so as to deem the relationship between Borrower and Lender to be other than that of debtor and creditor. Section 6.2 NO RELIANCE ON LENDER. The partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Neither Borrower nor Fee Owner is relying on Lender's expertise, business acumen or advice in connection with the Property. Section 6.3 NO LENDER OBLIGATIONS. (a) Notwithstanding the provisions of Subsections 1.,11(e1 and 1.2(11 or Section 1_2, Lender is not undertaking (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents. (b) By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Security Instrument, the Note or the Other Loan Documents, including without limitation, any officer's certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender. Section 6.4 RELIANCE. Borrower recognizes and acknowledges that in accepting the Note, this Security Instrument and the Other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the warranties and representations set forth in Article 5 and that certain Closing Certificate of even date herewith executed by Borrower, without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof; that such warranties and representations are a material inducement to Lender in accepting the Note, this -23- JPMORAN CHASE BANK (109) 53051501.03 8K 1 7 4 4 PG 0 2 0 6 Security Instrument and the Other Loan Documents; and that Lender would not be willing to make the Loan (as hereinafter defined) and accept this Security Instrument in the absence of the warranties and representations as set forth in Article 5 and such Closing Certificate. ARTICLE 7 - FURTHER ASSURANCES Section 7,1 RECORDING FEES. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, this Security Instrument, the Other Loan Documents, any note or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Security Instrument, any mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do. Section 7.2 FURTHER ACTS. Borrower and/or Fee Owner will, at the cost of Borrower, and without expense to Lender, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower and/or Fee Owner may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terns of this Security Instrument or for filing, registering or recording this Security Instrument, or for complying with all Applicable Laws. Each of Borrower and/or Fee Owner, on demand, will execute and deliver and hereby authorizes Lender to execute in its name or without its signature to the extent Lender may lawfully do so, one or more financing statements, chattel mortgages or other instruments, to evidence more effectively the security interest of Lender in the Property. Each of Borrower and Fee Owner grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation such rights and remedies available to Lender pursuant to this Section 72. LAWS. Section 7.3 CHANGES IN TAX. DEBT CREDIT- AND DOCUMENTARY TAMP (a) If any law is enacted or adopted or amended after the date of this Security Instrument which imposes a tax, either directly or indirectly, on the Debt or Lender's interest in the Property, requires revenue or other stamps to be affixed to the Note, this Security Instrument, or the Other Loan Documents, or imposes any other tax or charge on the same, Borrower will pay the same, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury, then Lender shall have the option, by written notice of not less than ninety (90) calendar days, to declare the Debt immediately due and payable, -24- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 7 4 4 PG 0 2 0 7 (b) Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of this Security Instrument or the Debt. If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than ninety (90) calendar days, to declare the Debt immediately due and payable. Section 7.4 CONFIRMATION STATEMENT. (a) After request by Lender, Borrower, within ten (10) days, shall furnish Lender or any proposed assignee with a statement, duly acknowledged and certified, confirming to Lender (or its designee) (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the terms of payment and maturity date of the Note, (v) the date installments of interest and/or principal were last paid, and (vi) that, except as provided in such statement, there are no defaults or events which with the passage of time or the giving of notice or both, would constitute an event of default under the Note or this Security Instrument; provide , however. Lender shall not be entitled hereunder to receive more than one (1) such statement in each calendar year. (b) Subject to the provisions of the Leases, Borrower shall deliver to Lender, promptly upon request (but not more frequently than once annually so long as Borrower is not in default hereunder), duly executed estoppel certificates from any one or more lessees as required by Lender attesting to such facts regarding the Lease as Lender may require, including but not limited to attestations that each Lease covered thereby is in full force and effect with no defaults thereunder on the part of any party, that none of the Rents have been paid more than one month in advance, and that the lessee claims no defense or offset against the full and timely performance of its obligations under the Lease. (c) Upon any transfer or proposed transfer contemplated by Section 16.1 hereof, at Lendees request, Borrower, Fee Owner, any Guarantors and any Indemnitors shall provide an estoppel certificate to the Investor (defined in Section 16.1) or any prospective Investor in such form, substance and detail as Lender, such Investor or prospective Investor may require. Section 7.5 SPLITTING OF SECURITY INSTRUMENT. This Security Instrument and the Note shall, at any time until the same shall be fully paid and satisfied, at the sole election of Lender, be split or divided into two or more notes and two or more security instruments, each of which shall cover all or a portion of the Property to be more particularly described therein. To that end, Borrower and Fee Owner, upon written request of Lender, shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered by the then owner of the Property, to Lender and/or its designee or designees substitute notes and security instruments in such principal amounts, aggregating not more than the then unpaid principal amount of Debt, and containing terms, provisions and clauses similar to those contained herein and in the Note, and such other documents and instruments as may be required by Lender. -25- JPMORAN CHASE BANK (11/99) 53051501.03 8K 17 4 4 PG 0 2 0 8 Section 7.6 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any Other Loan Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or Other Loan Document, Borrower, at Lender's expense, will issue, in lieu thereof, a replacement Note or Other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or Other Loan Document in the same principal amount thereof and otherwise of like tenor. ARTICLE 8 - DUE ON SALE/ENCUMBRANCE Section 8.1 LENDER RELIANCE. Borrower acknowledges that Lender has examined and relied on the creditworthiness of Borrower and Fee Owner and experience of each of Borrower and Fee Owner and its partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower's and Fee Owners' ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property. Section 8.2 NO SALE/ENCUMBRANCE. (a) Borrower and Fee Owner agree that Borrower and Fee Owner shall not, without the prior written consent of Lender, Transfer the Property or any part thereof or permit the Property or any part thereof to be Transferred. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower's or Fee Owner's Transfer of the Property without Lender's consent. (b) As used in Section 8.2(a). "Transfer" shall mean any voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment or transfer of all or any part of the Property or any interest therein including, but not limited to: (i) an installment sales agreement wherein Borrower or Fee Owner agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder, (iii) a sale, assignment or other transfer of, or the grant of a security interest in, Borrower's right, title and interest in and to any Leases or any Rents; (iv) if Borrower, Guarantor, or any managing member or general partner of Borrower or Guarantor is a corporation, any Transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such Borrower, Guarantor, managing member or general partner by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of forty-nine percent (49°/O) or more of such corporation's stock shall directly or indirectly be vested in or pledged to a party or parties who are not now stockholders vided, h wev , in no event shall this subpart [iv] apply to any such entity whose stock or shares are traded on a nationally recognized stock exchange); (v) if Borrower, Guarantor, or any -26- JPMOXAN CRASH BANK(] IM) 53051501.03 BK ! 7 4 4 PG 0 2 0 9 managing member or general partner of Borrower or Guarantor is a limited liability company or partnership, the Transfer by which an aggregate of forty-nine percent (49%) or more of the ownership interest in such limited liability company or forty-nine percent (49%0) or more of the partnership interests in such partnership shall directly or indirectly be vested in or pledged to parties not having an ownership interest as of the date of this Security Instrument; (vi) if Borrower, any Guarantor or any managing member or general partner of Borrower or any Guarantor is a partnership, limited liability company or joint venture, the change, removal or resignation of a general partner, managing member or joint venturer or the Transfer directly or indirectly of all or any portion of the partnership or ownership interest of any general partner, managing member or joint venturer; and (vii) except as expressly permitted by Section 8.3, any Transfer by an Original Principal, directly or indirectly, of its ownership interest in the Borrower. Section 8.3 EXCLUDED AND PERMITTED TRANSFERS. (a) A Transfer within the meaning of this Article shall not include (i) transfers of ownership interests in the Borrower, any general partner or managing member or any Guarantor made by devise or descent or by operation of law upon the death of a joint tenant, partner, member or shareholder, subject, however, to all the following requirements: (A) written notice of any transfer under this Section 8.3, whether by will, trust or other written instrument, operation of law or otherwise, is provided to Lender or its servicer, together with copies of such documents relating to the transfer as Lender or its servicer may reasonably request, (B) control over the management and operation of the Property is retained by one or more of Lepercq Corporate Income Fund, L.P. (the "Original Principals", whether one or more) at all times prior to the death or legal incapacity of all the Original Principals and is thereafter assumed by persons who are acceptable in all respects to Lender in its sole and absolute discretion, (C) no such transfer by any of the Original Principals will release the respective estate from any liability as a Guarantor, and (D) no such transfer, death or other event has any adverse effect either on the bankruptcy-remote status of Borrower under the requirements of any national rating agency for the Securities (hereinafter defined) or on the status of Borrower as a continuing legal entity liable for the payment of the Debt and the performance of all other obligations secured hereby, (ii) transfers otherwise by operation of law in the event of a bankruptcy, or (iii) a Lease of a portion of the Property to a space tenant. (b) Notwithstanding any provision of this Security Instrument to the contrary, the prohibitions in Subsection 8.2(a) shall not apply to an inter vivos or testamentary transfer of all or any portion of ownership interests in the Borrower, any general partner or managing member or any Guarantor to one or more family members of Original Principals or a trust in which all of the beneficial interest is held by one or more family members of Original Principals or a partnership or limited liability company in which a majority of the capital and profits interests are held by one or more family members of Original Principals, provided, that any inter vivos transfer of all or any portion of the ownership interests in the Borrower, such general partner or managing member or such Guarantor is made in connection with Original Principals' bona fide, good faith estate -27- JPMORAN CHASE BANK (11/99) 53051501.03 B% 17 4 4 PG 0 21 0 planning and that the person(s) with voting control of Borrower or the management of the Property are (i) the same person(s) who had such voting control and management rights immediately prior to the transfer in question, or (ii) reasonably acceptable to Lender and providod rte that no such transfer shall have any adverse effect on the bankruptcy remote status of Borrower under the requirements of any national rating agency for the Securities. Lender acknowledges that Original Principals and/or an Original Principal's spouse are acceptable to exercise voting control of Borrower and the management of the Property. As used herein, "family members" shall include the spouse, children and grandchildren and any lineal descendants. In addition, notwithstanding any provision of this Security Instrument to the contrary, the prohibitions in Subsection 8.2(a) shall not apply to transfer of all or any portion of the ownership interests in the Original Principal to an affiliate of the current owners of such ownership interests, provided, that the person(s) with voting control of Borrower or the management of the Property are the same person(s) who had such voting control and management rights immediately prior to the transfer in question, and provided fwther that no such transfer shall have any adverse effect on the bankruptcy remote status of Borrower under the requirements of any national rating agency for the Securities. (c) Notwithstanding the provisions of Section 8.2 above, Lender will give its consent to three separate sales or transfers of the Property or ownership interests in the Borrower, a general partner or managing member of the Borrower, or any Guarantor, if (but only it) no Event of Default under the Loan Documents has occurred and is continuing, and if each of the following conditions precedent have been fully satisfied (as determined in Lender's sole and absolute discretion): (i) the grantee's or transferee's integrity, reputation, organizational structure, capital strength, financial condition, commercial real estate ownership and operational experience, character and management ability are satisfactory to Lender in its sole discretion, and all information relating thereto requested by Lender is delivered to Lender at least 30 days prior to the proposed transfer, (ii) the grantee's or transferee's (and its sole general partner's or managing member's) single purpose and bankruptcy remote character am satisfactory to Lander in its sole discretion, and all information relating thereto requested by Lender is delivered to Lender at least 30 days prior to the proposed transfer, (iii) Lender has obtained such estoppels from any guarantors of the Note or replacement guarantors and such other legal opinions regarding substantive consolidation issues, enforceability of the assumption documents, no adverse impact on the Securities or any REMIC holding the Note and similar matters as Lender may require, (iv) all of Lender's reasonable costs and expenses associated with the sale or transfer (including reasonable attorneys' fees) are paid by Borrower or the grantee or transferee, (v) the payment of a transfer fee not to exceed I% of the then unpaid principal balance of the loan evidenced by the Note and secured hereby (the "Loan"), (vi) the execution and delivery to Lender of a written assumption agreement and/or substitute guaranty (in its sole and absolute discretion) and such modifications to the Loan Documents executed by such parties and containing such terns and conditions as Lender may require in its sole and absolute discretion prior to such We or transfer (provided that in the event the Loan is included in a REMIC and is a performing Loan, no modification to the terms and conditions shall be made or permitted that would cause (A) any adverse tax consequences to the REMIC or any holders of any -28- JPMORAN CHASE BANK (11199) 53051501,03 BK 17 4 4 PG 0 21 I Mortgage-Backed Pass-Through Securities, (B) the Security Instrument to fail to be a Qualifying Security Instrument under applicable federal law relating to REMIC's, or (C) result in a taxation of the income from the Loan to the REMIC or cause a loss of REMIC status), and (vii) if applicable, the delivery to Lender of an endorsement (at Borrower's sole cost and expense) to Lender's policy of title insurance then insuring the lien created by this Security Instrument in form and substance acceptable to Lender in. its sole judgment. (d) Without limiting the foregoing, if Lender shall consent to a transfer of the Property, the written assumption agreement described in Subsection 8.3(c)(t) above shall provide for the release of Borrower and, if approved by Lender, each Guarantor and Indemnitor of personal liability under the Note and Other Loan Documents, but only as to acts or events occurring, or obligations arising, after the closing of such transfer. Section 8.4 NO IMPLIED FUTURE CONSENT. Lender's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Lender's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Article 8 shall be null and void and of no force and effect. Section 8.5 COSTS OF CONSENT. Borrower agrees to bear and shall pay or reimburse Lender on demand for all reasonable expenses (including, without limitation, all recording costs, reasonable attorneys' fees and disbursements and title search costs) incurred by Lender in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer. Section 8.6 CONTINUING SEPARATENESS REQUIREMENTS. In no event shall any of the terms and provisions of this Article 8 amend or modify the terms and provisions contained in Section 4. herein. ARTICLE 9 - DEFAULT Section 9.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following events shall constitute an "Event of Default": (a) if any portion of the Debt is not paid prior to the seventh (7th) calendar day after the same is due or if the entire Debt is not paid on or before the maturity date, along with applicable prepayment premiums, if any, (b) if Borrower, or its general partner or managing member, if applicable, or Fee Owner violates or does not comply with any of the provisions of Section 4.3 or Article 8: (c) if any representation or warranty of either of Borrower or Fee Owner or of its members, general partners, principals, affiliates, agents or employees, or of any Guarantor made herein or in the Environmental indemnity or in any other Loan Document, in any guaranty, or in any certificate, report, financial statement or other -29- 1PMORAN CHASE BANK (11/99) 53051501,03 DA I/ 4 4 (t3 O 2 12 instrument or document furnished to Lender shall have been false or misleading in any material respect when made; (d) if Borrower, Fee Owner or any Guarantor shall make an assignment for the benefit of creditors or if Borrower, Fee Owner or any Guarantor shall admit in writing its inability to pay, or Borrower's, Fee Owner's or any Guarantor's failure to pay its debts as they become due; (e) if (i) Borrower or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, Fee Owner or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) calendar days; or (iii) there shall be commenced against Borrower or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) calendar days from the entry thereof; or (iv) Borrower or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) Borrower or any subsidiary or general partner or managing member of Borrower, Fee Owner or any Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; (f) subject to Borrower's right to contest certain liens as provided in this Security Instrument, if the Property becomes subject to any mechanic's, materialman's or other lien other than a lien for local real estate taxes and assessments not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) calendar days; (g) if any federal tax lien is filed against Borrower, any general partner or managing member of Borrower, Fee Owner, any Guarantor or the Property and same is not discharged of record within thirty (30) calendar days after same is filed; -30- JPMORAN CHASE BANK (t IM) 53051501.03 ?K 17 4 4 PG 0 213 (h) except as permitted in this Security Instrument, the actual or threatened material alteration, improvement, demolition or removal of any of the Improvements without the prior consent of Lender; (i) damage to the Property in any manner which is not covered by insurance, which lack of coverage arises solely as a result of Borrower's failure to maintain the insurance required under this Security Instrument; 0) if a managing agent is appointed for the Property in compliance with Section 5.3(1), and subsequently, without Lender's prior written consent, (i) the managing agent for the Property resigns or is removed, (ii) the ownership, management or control of such managing agent is transferred to a person or entity other than the general partner, managing partner or managing member or Principal of the Borrower, or (iii) there is any material change in the property management agreement of the Property, (k) this Security Instrument shall cease to constitute a first-priority lien on the Property (other than in accordant with its terms); (1) seizure or forfeiture of the Property, or any portion thereof, or Borrower's or Foe Owner's interest therein, resulting from criminal wrongdoing or other unlawful action of Borrower, its affiliates, Fee Owner or any tenant in the Property under any federal, state or local law; (m) if Borrower consummates a transaction which would cause this Security Instrument or Lender's exercise of its rights under this Security Instrument, the Note or the Other Loan Documents to constitute a nonexempt prohibited transaction under ERISA or result in a violation of a state statute regulating governmental plans, subjecting Lender to liability for a violation of ERISA or a state statute; (n) if any default occurs under any guaranty or indemnity including the Environmental Indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, or such guaranty or indemnity shall cease to be in full force and effect, or any guarantor or indemnitor shall deny or disaffirm its obligation thereunder, (o) if Borrower, Fee Owner or any Guarantor, as the case may be, shall continue to be in default under any other term, covenant or condition of this Security Instnmment or any Other Loan Documents for thirty (30) calendar days after notice from Lender; provided that if such default cannot reasonably be cured within such thirty (30) calendar day period and Borrower (or Fee Owner or such Guarantor as the case may be) shall have commenced to cure such default within such thirty (30) calendar day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) calendar day period shall be extended for so long as it shall require Borrower (or Fee Owner or such Guarantor as the case may be) in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of sixty (60) calendar days after the notice from Lender referred to above; and -31- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 7 4 4 PG 0 214 (p) if Borrower shall fail to observe or perform any term, covenant, condition or agreement in the Ground Lease beyond any cure period contained therein, or if the Ground Lease shall be cancelled or terminated for any reason. Section 9.2 DEFAULT INTEREST. Borrower will pay, from the date of an Event of Default through the earlier of the date upon which the Event of Default is cured or the date upon which the Debt is paid in full, interest on the unpaid principal balance of the Note at a per annum rate equal to the lesser of (a) the greater of (i) five percent (5%) plus the Prime Rate (as defined in the Note), and (ii) five percent (5%) plus the Applicable Interest Rate (as defined in the Note), and (b) the maximum interest rate which Borrower may by law pay or Lender may charge and collect (the "Default Rate"). ARTICLE 10 - RIGHTS AND REMEDIES Section 10.1 REMEDIES. Upon the occurrence of any Event of Default and in accordance with applicable law, Borrower and Fee Owner agree that Lender may take such action, without notice or demand except as otherwise required by applicable law, as it deems advisable to protect and enforce its rights against Borrower and Fee Owner and in and to the Property, including, but not limited to, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Lender: (a) Right to Perform Borrower's and Fee Owner's Covenants. If Borrower or Fee Owner has failed to keep or perform any covenant whatsoever contained in this Security Instrument or the Other Loan Documents, Lender may, but shall not be obligated to any person to do so, perform or attempt to perform said covenant and any payment made or expense incurred in the performance or attempted performance of any such covenant, together with any sum expended by Lender that is chargeable to Borrower or subject to reimbursement by Borrower under the Loan Documents, shall be and become a part of the "Debt", and Borrower promises, upon demand, to pay to Lender, at the place where the Note is payable, all sums so incurred, paid or expended by Lender, with interest from the date when paid, incurred or expended by Lender at the Default Rate. (b) Right of Entry. Lender may, prior or subsequent to the institution of any foreclosure proceedings, enter upon the Property, or any part thereof, and take exclusive possession of the Property and of all books, records, and accounts relating thereto and to exercise without interference from Borrower any and all rights which Borrower has with respect to the management, possession, operation, protection, or preservation of the Property, including without limitation the right to rent the same for the account of Borrower and to deduct from such Rents all costs, expenses, and liabilities of every character incurred by Lender in collecting such Rents and in managing, operating, maintaining, protecting, or preserving the Property and to apply the remainder of such Rents on the Debt in such manner as Lender may elect. All such costs, expenses, and liabilities incurred by Lender in collecting such Rents and in managing, operating, maintaining, protecting, or preserving the Property, if not paid out of Rents as hereinabove provided, shall constitute a demand obligation owing by Borrower and shall -32- WORAN CHASE HANK (11/99) 53051501.03 gK 17 4 4 PG 0 215 bear interest from the date of expenditure until paid at the Default Rate, all of which shall constitute a portion of the Debt. If necessary to obtain the possession provided for above, Lender may invoke any and all legal remedies to dispossess Borrower, including specifically one or more actions for forcible entry and detainer, trespass to try title, and restitution to the extent permitted under applicable law. In connection with any action taken by Lender pursuant to this Subsection 1QJM, Lender shall not be liable for any loss sustained by Borrower resulting from any failure to let the Property, or any part thereof, or from any other act or omission of Lender in managing the Property unless such loss is caused by the willful misconduct of Lender, nor shall Lender be obligated to perform or discharge any obligation, duty, or liability under any Lease or under or by reason hereof or the exercise of rights or remedies hereunder. Borrower shall and does hereby agree to indemnify Lender for, and to hold Lender harmless from, any and all liability, loss, or damage, which may or might be incurred by Lender under any such Lease or under or by reason hereof or the exercise of rights or remedies hereunder, and from any and all claims and demands whatsoever which may be asserted against Lender 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 such Lease. Should Lender incur any such liability, the amount thereof, including without limitation costs, expenses, and reasonable attorneys' fees, together with interest thereon from the date of expenditure until paid at the Default Rate, shall be secured hereby, and Borrower shall reimburse Lender therefor immediately upon demand. Nothing in this Subsection 101(b) shall impose any duty, obligation, or responsibility upon Lender for the control, care, management, leasing, or repair of the Property, nor for the carrying out of any of the terms and conditions of any such Lease; nor shall it operate to make Lender responsible or liable for any waste committed on the Property by the tenants or by any other parties, or for any hazardous substances or environmental conditions on or under the Property, or for any dangerous or defective condition of the Property or for any negligence in the management, leasing, upkeep, repair, or control of the Property resulting in loss or injury or death to any tenant, licensee, employee, or stranger. Borrower and Fee Owner hereby assent to, ratifiy, and confirm any and all actions of Lender with respect to the Property taken under this subsection. (c) Right to Accelerate. Lender may, without notice (except as provided in Section 9.1W above) demand, presentment, notice of nonpayment or nonperformance, protest, notice of protest, notice of intent to accelerate, notice of acceleration, or any other notice or any other action, all of which are hereby waived by Borrower, Fee Owner and all other parties obligated in any manner whatsoever on the Debt, declare the entire unpaid balance of the Debt immediately due and payable, and upon such declaration, the entire unpaid balance of the Debt shall be immediately due and payable. (d) Foreclosure-Power of Sale. Lender may institute a proceeding or proceedings for the complete or partial foreclosure of this Security Instrument under any applicable provision of law. Lender may sell the Property, and all estate, right, title, interest, claim and demand of Borrower and Fee Owner therein, and all rights of redemption thereof, at one or more sales, as an entirety or in parcels, with such elements of real and/or personal property, and at such time and place and upon such terms as it -33- IFMORM cHM& B"K (t 1/99) 53051501.03 89 1 7 4 4 PG O 2 16 may deem expedient, or as may be required by applicable law, and in the event of a sale by foreclosure of less than all of the Property, this Security Instrument shall continue as a lien and security interest on the remaining portion of the Property. (e) It 6b Pertaining to Sales. Subject to the requirements of applicable law and except as otherwise provided herein, the following provisions shall apply to any sale or sales of all or any portion of the Property under or by virtue of Subsection 10.1(d) above made by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale: (i) Lender may conduct any number of sales from time to time. Lender's rights to sell the Property shall not be exhausted by any one or more such sales as to any pact of the Property which shall not have been sold, nor by any sale which is not completed or is defective in Lender's opinion, until the Debt shall have been paid in full. (ii) Any sale may be postponed or adjourned by public announcement at the time and place appointed for such sale or for such postponed or adjourned sale without further notice. (iii) After each sale, Lender or an officer of any court empowered to do so shall execute and deliver to the purchaser or purchasers at such sale a good and sufficient instrument or instruments granting, conveying, assigning and transferring all right, title and interest of Borrower and Fee Owner in and to the property and rights sold and shall receive the proceeds of said sale or sales and apply the same as specified in the Note. Lender is hereby appointed the true and lawful attorney-in-fact of each of Borrower and Fee Owner, , which appointment is irrevocable and shall be deemed to be coupled with an interest, in Borrower's or Fee Owner's name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the property and rights so sold, Borrower and Fee Owner hereby ratifying and confirming all that said attorney or such substitute or substitutes shall lawfully do by virtue thereof. Nevertheless, Borrower and Fee Owner, if requested by Lender, shall ratify and confirm any such sale or sales by executing and delivering to Lender or such purchaser or purchasers all such instruments as may be advisable, in Lender's judgment, for the purposes as may be designated in such request. (iv) Any and all statements of fact or other recitals made in any of the instruments referred to in Subsection 10.1(8 (iii) given by Lender shall be taken as conclusive and binding against all persons as to evidence of the truth of the facts so stated and recited. (v) Any such sale or sales shall operate to divest all of the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Borrower and Fee Owner in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Borrower and Fee Owner and any and all persons claiming or who may claim the same, or any part thereof -34- JPMORAN CHASE BANK (11/99) 53051501.03 BK 17 4 4 PG 0 217 or any interest therein, by, through or under Borrower or Fee Owner to the fullest extent permitted by applicable law. (vi) Upon any such sale or sales, Lender may bid for and acquire the Property and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting against the Debt the amount of the bid made therefor, after deducting therefrom the expenses of the sale, the cost of any enforcement proceeding hereunder, and any other sums which Lender is authorized to deduct under the terms hereof, to the extent necessary to satisfy such bid. (vii) Upon any such sale, it shall not be necessary for Lender or any public officer acting under execution or order of court to have present or constructively in its possession any of the Property. (f) Lender's Judicial Remedies. Lender may proceed by suit or suits, at law or in equity, to enforce the payment of the Debt to foreclose the liens and security interests of this Security Instrument as against all or any part of the Property, and to have all or any part of the Property sold under the judgment or decree of a court of competent jurisdiction. This remedy shall be cumulative of any other nonjudicial remedies available to Lender under this Security Instrument, the Note or the Other Loan Documents. Proceeding with a request or receiving a judgment for legal relief shall not be or be deemed to be an election of remedies or bar any available nonjudicial remedy of Lender. (9) Llender's Right to Appointment of Roceiver. Lender, as a matter of right and (i) without regard to the sufficiency of the security for repayment of the Debt and without notice to Borrower or Fee Owner except as otherwise required by applicable law, (ii) without any showing of insolvency, fraud, or mismanagement on the part of Borrower or Fee Owner, (iii) without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, and (iv) without regard to the then value of the Property, shall be entitled to the appointment of a receiver or receivers for the protection, possession, control, management and operation of the Property, including (without limitation), the power to collect the Rents, enforce this Security Instrument and, in case of a sale and deficiency, during the full statutory period of redemption (if any), whether there be a redemption or not, as well as during any further times when Borrower, except for the intervention of such receiver, would be entitled to collection of such Rents. Borrower and Fee Owner hereby irrevocably consent to the appointment of a receiver or receivers. Any receiver appointed pursuant to the provisions of this subsection shall have the usual powers and duties of receivers in such matters, (h) Commercial Code Remedies. Exercise any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing: (i) the right to take possession of the Personal Property or any part thereof, and to take such other measures as Lender may deem necessary for the care, protection and preservation of the Personal Property, and (ii) request Borrower at its expense to assemble the Personal Property and make it available to Lender at a convenient place acceptable to Lender. Any notice of sale, disposition or -35- JPMORAN CHASE BANK (11/99) 53051501M OK 1744PG0218 other intended action by Lender with respect to the Personal Property sent to Borrower and Fee Owner in accordance with the provisions hereof at least five (S) days prior to such action, shall constitute commercially reasonable notice to Borrower and Fee Owner. (i) Apply Escrow Funds. Lender may apply any Funds (as defined in the Escrow Agreement) and any other sums held in escrow or otherwise by Lender in accordance with the terms of this Security Instrument or any Other Loan Document to the payment of the following items in any order in its uncontrolled discretion: (i) Taxes and Other Charges; (ii) Insurance Premiums; (iii) Interest on the unpaid principal balance of the Note; (iv) Amortization of the unpaid principal balance of the Note; and (v) All other sums payable pursuant to the Note, this Security Instrument and the Other Loan Documents, including without limitation advances made by Lender pursuant to the terms of this Security Instrument. 0) Other Rights. Lender (i) may surrender the Policies maintained pursuant to this Security Instrument or any part thereof; and upon receipt shall apply the unearned premiums as a credit on the Debt, and, in connection therewith, Borrower hereby appoints Lender as agent and attorney-in-fact (which is coupled with an interest and is therefore irrevocable) for Borrower to collect such premiums; and (ii) may apply the Tax and Insurance Escrow Fund (as defined in the Escrow Agreement) and/or the Replacement Escrow Fund (as defined in the Escrow Agreement) and any other funds held by Lender toward payment of the Debt; and (iii) shall have and may exercise any and all other rights and remedies which Lender may have at law or in equity, or by virtue of any of the Loan Documents, or otherwise. (k) Discontinuance of Remedies. In case Lender shall have proceeded to invoke any right, remedy, or recourse permitted under the Loan Documents and shall thereafter elect to discontinue or abandon same for any reason, Lender shall have the unqualified right so to do and, in such event, Borrower, Fee Owner and Lender shall be restored to their former positions with respect to the Debt, the Loan Documents, the Property or otherwise, and the rights, remedies,, recourses and powers of Lender shall continue as if same had never been invoked. (1) Remedies Cumulative. All rights, remedies, and recourses of Lender granted in the Note, this Security Instrument and the Other Loan Documents, any other pledge of collateral, or otherwise available at law or equity: (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively, or concurrently against Borrower, the Fee Owner, the Property, or any one or more of them, at the sole discretion of Lender; (iii) may be exercised as often as occasion therefor shall arise, it SKI 7 4 4 PG 8:gj 9 ,PMORMI CHASE BANK (I 1M) 53051501.03 being agreed by Borrower and Fee Owner that the exercise or failure to exercise any of same shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse; (iv) shall be nonexclusive; (v) shall not be conditioned upon Lender exercising or pursuing any remedy in relation to the Property prior to Lender bringing suit to recover the Debt; and (vi) in the event Lender elects to bring suit on the Debt and obtains a judgment against Borrower prior to exercising any remedies in relation to the Property, all liens and security interests, including the lien of this Security Instrument, shall remain in full force and effect and may be exercised thereafter at Lender's option. (m) Bankruptcy Acknowledmnent. In the event the Property or any portion thereof or any interest therein becomes property of any bankruptcy estate or subject to any state or federal insolvency proceeding, then Lender shall immediately become entitled, in addition to all other relief to which Lender may be entitled under this Security Instrument, to obtain (i) an order from the Bankruptcy Court or other appropriate court granting immediate relief from the automatic stay pursuant to § 362 of the Bankruptcy Code so to permit Lender to pursue its rights and remedies against Borrower and Fee Owner as provided under this Security Instrument and all other rights and remedies of Lender at law and in equity under applicable state law, and (ii) an order from the Bankruptcy Court prohibiting Borrower's use of all "cash collateral" as defined under § 363 of the Bankruptcy Code. In connection with such Bankruptcy Court orders, Borrower and Fee Owner shall not contend or allege in any pleading or petition filed in any court proceeding that Lender does not have sufficient grounds for relief from the automatic stay. Any bankruptcy petition or other action taken by the Borrower and/or Fee Owner to stay, condition, or inhibit Lender from exercising its remedies are hereby admitted by Borrower and Fee Owner to be in bad faith and Borrower and Fee Owner further admit that Lender would have just cause for relief from the automatic stay in order to take such actions authorized under state law. (n) Application of Proceeds. The proceeds from any sale, lease, or other disposition made pursuant to this Security Instrument, or the proceeds from the surrender of any insurance policies pursuant hereto, or any Rents collected by Lender from the Property, or the Tax and Insurance Escrow Fund or the Replacement Escrow Fund (as defined in the Escrow Agreement) or proceeds from insurance which Lender elects to apply to the Debt pursuant to Article 3 hereof, shall be applied by Lender to the Debt in the following order and priority: (1) to the payment of all expenses of advertising, selling, and conveying the Property or part thereof, and/or prosecuting or otherwise collecting Rents, proceeds, premiums or other sums including reasonable attorneys' fees; (2) to that portion, if any, of the Debt with respect to which no person or entity has personal or entity liability for payment (the "Exculpated Portion"), and with respect to the Exculpated Portion as follows: first, to accrued but unpaid interest, second, to matured principal, and third, to unmatured principal in inverse order of maturity, (3) to the remainder of the Debt as follows: first, to the remaining accrued but unpaid interest, second, to the matured portion of principal of the Debt, and third, to prepayment of the unmatured portion, if any, of principal of the Debt applied to installments of principal in inverse order of maturity, (4) the balance, if any or to the extent applicable, remaining after the full and final payment of the Debt to the holder or beneficiary of any inferior -37- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1744PG0220 liens covering the Property, if any, in order of the priority of such inferior liens (Lender shall hereby be entitled to rely exclusively on a commitment for title insurance issued to determine such priority); and (5) the cash balance, if any, to the Borrower. The application of proceeds of sale or other proceeds as otherwise provided herein shall be deemed to be a payment of the Debt like any other payment. The balance of the Debt remaining unpaid, if any, shall remain fully due and owing in accordance with the terms of the Note and the other Loan Documents. (o) CONFESSION OF JUDGMENT. FOR THE PURPOSE OF OBTAINING POSSESSION OF THE PROPERTY UPON THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THE SECURITY INSTRUMENT, EACH OF BORROWER AND FEE OWNER HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR BORROWER AND FEE OWNER AND ALL PERSONS CLAIMING UNDER OR THROUGH BORROWER OR FEE OWNER TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION IN EJECTMENT FOR POSSESSION OF THE PROPERTY AND TO APPEAR FOR AND CONFESS JUDGMENT AGAINST BORROWER, FEE OWNER AND AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH BORROWER OR FEE OWNER, IN FAVOR OF LENDER, FOR RECOVERY BY LENDER OF POSSESSION THEREOF, FOR WHICH THIS MORTGAGE, OR A COPY THEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED IT SHOULD BE DISCONTINUED, OR POSSESSION OF THE PROPERTY SHALL REMAIN IN OR BE RESTORED TO BORROWER AND/OR FEE OWNER, LENDER SHALL HAVE THE RIGHT FOR THE SAME EVENT OF DEFAULT OR ANY SUBSEQUENT EVENT OF DEFAULT TO BRING ONE OR MORE FURTHER ACTIONS AS ABOVE PROVIDED TO RECOVER POSSESSION OF THE PROPERTY. LENDER MY BRING AN ACTION IN EJECTMENT AND CONFESS JUDGMENT THEREIN BEFORE OR AFTER THE INSTITUTION OF PROCEEDINGS TO FORECLOSE THIS SECURITY INSTRUMENT OR TO ENFORCE THE NOTE, OR AFTER ENTRY OF JUDGMENT ON THE NOTE OR THIS SECURITY INSTRUMENT, OR AFTER A SHERIFF'S SALE OF THE PROPERTY IN WHICH LENDER IS THE SUCCESSFUL BIDDER; THE AUTHORIZATION TO PURSUE SUCH PROCEEDINGS FOR OBTAINING POSSESSION AND CONFESS JUDGMENT THEREIN IS AN ESSENTIAL PART OF THE REMEDIES FOR ENFORCEMENT OF THIS SECURITY INSTRUMETN AND THIS NOTE, AND SHALL SURVIVE ANY EXECUTION SALE TO LENDER (p) Upon the occurrence of any Event of Default which shall be continuing, the Lender may proceed to protect and enforce its rights under this security tnr<wm=t by suit -38- RMORAN CHASE RANK (11/99) I744PG022I 53051501.03 for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted, or for the foreclosure of this security Instrument and the sale of the Property under the judgment or decree of a court of competent jurisdiction, or for the enforcement of any other right as the Lender shall deem most effectual for such purpose. The foregoing rights shall be in addition to, and not in lieu of, the rights of the Lender as a secured creditor under the Uniform Commercial Code of Pennsylvania with respect to any portion of the Property which is subject to such Code. The Lender may also proceed in any other manner permitted by law to enforce its rights hereunder. Section 10.2 RIGHT OF ENTRY. Lender and its agents shall have the right to enter and inspect the Property at all reasonable times provided, prior to the occurrence of an Event of Default, Lender shall give Borrower reasonable prior notice thereof. Lender shall use reasonable efforts not to interfere with Borrower's or any tenant's use and enjoyment of the Property. ARTICLE 11 - INDEMNIFICATION; SUBROGATION Section 11.1 GENERAL INDEMNIFICATION. (a) Borrower shall indemnify, defend and hold Lender harmless against: (i) any and all claims for brokerage, leasing, finder's or similar fees which may be made relating to the Property or the Debt, and (ii) any and all liability, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses (including Lender's reasonable attorneys' fees, together with reasonable appellate counsel fees, if any) of whatever kind or nature which may be asserted against, imposed on or incurred by Lender in connection with the Debt, this Security Instrument, the Property, or any part thereof, or the exercise by Lender of any rights or remedies granted to it under this Security Instrument; provided. ow v , that nothing herein shall be construed to obligate Borrower to indemnify, defend and hold harmless Lender from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses enacted against, imposed on or incurred by Lender by reason of Lender's willful misconduct or gross negligence. (b) If Lender is made a party defendant to any litigation or any claim is threatened or brought against Lender concerning the secured indebtedness, this Security Instrument, the Property, or any part thereof, or any interest therein, or the construction, maintenance, operation or occupancy or use thereof, then Lander shall notify Borrower of such litigation or claim and Borrower shall indcmnify, defend and hold Lender harmless from and against all liability by reason of said litigation or claims, including reasonable attorneys' fees (together with reasonable appellate counsel fees, if any). The right to such attorneys' fees (together with reasonable appellate counsel fees, if any) and expenses incurred by Lender in any such litigation or claim of the type described in this Subsecti on 11, , whether or not any such litigation or claim is prosecuted to judgment, shall be deemed to have accrued on the commencement of such claim or action and shall be enforceable whether or not such claim or action is prosecuted to judgment. If Lender commences an action against Borrower or Fee Owner to enforce any of the terms hereof or to prosecute any breach by Borrower or Fee Owner of any of the terms hereof or to recover any sum secured hereby, Borrower shall pay to Lender its reasonable attorneys' -39- IPMORANCHASE BANK(11/99) 53051501.03 BK 17 4 4 PG 0 2 2 2 fees (together with reasonable appellate counsel fees, if any) and expenses. If Borrower or Fee Owner breaches any term of this Security Instrument, Lender may engage the services of an attorney or attorneys to protect its rights hereunder, and in the event of such engagement following any breach by Borrower or Fee Owner, Borrower shall pay Lender reasonable attorneys' fees (together with reasonable appellate counsel fees, if any) and expenses incurred by Lender, whether or not an action is actually commenced against Borrower or Fee Owner by reason of such breach. All references to "attorneys" in this Subsection 11 I N and elsewhere in this Security Instrument shall include without limitation any attorney or law firtrl engaged by Lender and Lender's in-house counsel, and all references to "fees and expenses" in this Subsection l1.lfbbj and elsewhere in this Security Instrument shall include without limitation any reasonable fees of such attorney or law firm and any allocation charges and allocation costs of Lender's in-house counsel. (c) A waiver of subrogation shall be obtained by Borrower from its insurance carrier and, consequently, Borrower waives any and all right to claim or recover against Lender, its officers, employees, agents and representatives, for loss of or damage to Borrower, the Property, Borrower's property or the property of others under Borrower's control from any cause insured against or required to be insured against by the provisions of this Security Instrument. Section 11.2 ENVIRONMENTAL INDEMNIFICATION. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (as hereinafter defined) imposed upon or incurred by or asserted against any Indemnified Parties (other than those arising solely from a state of facts that first came into existence after Lender acquired title to the Property through foreclosure or a deed in lieu thereof), and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any presence of any Hazardous Substances (as hereinafter defined) in, on, above, or under the Property; (b) any past, present or future Release (as hereinafter defined) of Hazardous Substances in, on, above, under or from the Property; (c) any activity by Borrower, Fee Owner any person or entity affiliated with Borrower, and any tenant or other user of the Property in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Property of any Hazardous Substances at any time located in, under, on or above the Property; (d) any activity by Borrower, any person or entity affiliated with Borrower, Fee Owner and any tenant or other user of the Property in connection with any actual or proposed Remediation (as hereinafter defined) of any Hazardous Substances at any time located in, under, on or above the Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (e) any past, present or threatened non-compliance or violations of any Environmental Law (as hereinafter defined) (or permits issued pursuant to any Environmental Law) in connection with the Property or operations thereon, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower, Fee Owner and any tenant or other user of the Property to comply with any order of any governmental authority in connection with any Environmental Laws; (f) the imposition, recording or filing or the future imposition, recording or filing of any Environmental Lien (as hereinafter defined) encumbering the Property; (g) any administrative -40- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 7 4 4 PG 0 2 2 3 processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Section 11.2; (h) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations under the Environmental Indemnity of even date executed by Borrower and Indemnitor; and (i) any diminution in value of the Property in any way connected with any occurrence or other matter referred to in this Section 11.2. The term "Environmental Law" means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances, relating to liability for or costs of Remediation or prevention of Releases of Hazardous Substances or relating to liability for or costs of other actual or threatened danger to human health or the environment affecting the Property. The term "Environmental Law" includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term "Environmental Law" also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law: conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of the Property; requiring notification or disclosure of Releases of Hazardous Substances or other environmental condition of the Property to any governmental authority or other person or entity, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to nuisance, trespass or other causes cf action related to the Property; and relating to wrongful death, personal injury, or property or other damage in connection with any physical condition or use of the Property. The term "Environmental Lien" includes but is not limited to any lien or other encumbrance imposed pursuant to Environmental Law, whether due to any act or omission of Borrower, Fee Owner or any other person or entity. The term "Hazardous Substances" includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present or future Environmental Laws or that may have a negative impact on human health or the environment, including but not limited to petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, lead-based paints, radon, radioactive materials, flammables and explosives. -41- JPMORANCEASEBANK (11/99) 53051501.03 BK 1744PGO224 The term "Indemnified Parties" includes but is not limited to Lender, any person or entity who is or will have been involved in originating the Loan evidenced by the Note, any person or entity who is or will have been involved in servicing the Loan, any person or entity in whose name the encumbrance created by this Security Instrument is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan (including but not limited to those who may acquire any interest in Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assign of any and all of the foregoing (including but not limited to any other person or entity who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Property, whether during the term of the Loan or as part of or following foreclosure pursuant to the Loan) and including but not limited to any successors by merger, consolidation or acquisition of all or a substantial part of Lender's assets and business. The term "Losses" includes but is not limited to any claims, suits, liabilities (including but not limited to strict liabilities), administrative or judicial actions or proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, costs of Remediation (whether or not performed voluntarily), judgments, award, amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, attorneys' fees, engincer's fees, environmental consultants' fees and investigation costs (including but not limited to costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings. The term "Release" with respect to any Hazardous Substance includes but is not limited to any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances. The term "Remediation" includes but is not limited to any response, remedial, removal, or corrective action; any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances or to anything referred to in this Article 11. Section 11.3 DUTY TO DEFEND AND ATTORNEYS AND OTHER FEES AND EXPENSES. Upon written request by any Indemnified Party, Borrower shall defend such Indemnified Party (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals approved by the Indemnified Parties. Notwithstanding the foregoing, any Indemnified Parties may, in their sole and absolute discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnified Parties, their attomeys shall control the resolution of claim or proceeding. Upon demand, -42- JPMORAN CHASE BANK (11/99) 53051501.03 BK 1 744PGO225 Borrower shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Patties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith. Section 11.4 SURVIVAL OF INDEiiQ MIES. Notwithstanding any provision of this Security Instrument or any other Loan Document to the contrary, the provisions of Section 1.1 and Section 11.2. and Borrower's obligations thereunder, shall survive (a) the repayment of the Note, (b) the foreclosure of this Security Instrument, and (c) the release (or reconveyance, as applicable) of the lice of this Security Instrument. ARTICLE 12 - SECURITY AGREEMENT Section 12.1 SECURITY AGREEMENT. This Security Instrument is both a real property mortgage and a "security agreement" within the meaning of the Uniform Commercial Code. The Property includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Borrower and Fee Owner in the Property. Borrower and Fee Owner by executing and delivering this Security Instrument have granted and hereby grant to Lender, as security for the Obligations, a security interest in the Property to the full extent that the Property may be subject to the Uniform Commercial Code (said portion of the Property so subject to the Uniform Commercial Code being called in this paragraph the "Collateral"). Borrower and Fee Owner hereby agree with Lender to execute and deliver to Lender, in form and substance satisfactory to Lender, such financing statements, continuation statements, other uniform commercial code forms and shall pay all expenses and fees in connection with the filing and recording thereof; and such further assurances as Lender may from time to time, reasonably consider necessary to create, perfect, and preserve Lender's security interest herein granted This Security Instrument shall also constitute a "fixture filing" for the purposes of the Uniform Commercial Code. All or part of the Property are or are to become fixtures. Information concerning the security interest herein granted may be obtained from the parties at the addresses of the parties set forth in the first paragraph of this Security Instrument. If an Event of Default shall occur, Lender, in addition to any other rights and remedies which they may have, shall have and may exercise immediately and without demand, any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing, the right to take possession of the Collateral or any part thereof, and to take such other measures as Lender may deem necessary for the care, protection and preservation of the Collateral. Upon request or demand of Lender, Borrower shall at its expense assemble the Collateral and make it available to Lender at a convenient place acceptable to Lender. Borrower shall pay to Lender on demand any and all expenses, including legal expenses and reasonable attorneys' fees, incurred or paid by Lender in protecting the interest in the Collateral and in enforcing the rights hereunder with respect to the Collateral. Any notice of sale, disposition or other intended action by Lender with respect to the Collateral sent to Borrower and Fee Owner in accordance with the provisions hereof at least five (5) days prior to such action, shall constitute commercially reasonable notice to Borrower and Fee Owner. The proceeds of any disposition of the Collateral, or any part thereof, may be applied by Lender to the payment of the Obligations in such priority and proportions as Lender in its discretion shall deem proper. In the event of any change in name, -43- JPMORAN CHASE BANK (11199) 53051501.03 8K ! 7 4 4 PG 0 2 2 6 identity or structure of any Borrower and/or Fee Owner, such Borrower and/or Fee Owner shall notify Lender thereof and promptly after request shall execute, file and record such Uniform Commercial Code forms as are necessary to maintain the priority of Lender's lien upon and security interest in the Collateral, and shall pay all expenses and fees in connection with the filing and recording thereof. If Lender shall require the filing or recording of additional Uniform Commercial Code forms or continuation statements, Borrower and Fee Owner shall, promptly after request, execute, file and record such Uniform Commercial Code forms or continuation statements as Lender shall deem necessary, and shall pay all expenses and fees in connection with the filing and recording thereof, it being understood and agreed, however, that no such additional documents shall increase Borrower's obligations under the Note, this Security Instrument and the Other Loan Documents. Borrower and Fee Owner hereby irrevocably appoint Lender as its attorney-in-fact, coupled with an interest, to file with the appropriate public office on its behalf any financing or other statements signed only by Lender, as Borrower's and/or Fee Owner's attorney-in-fact, in connection with the Collateral covered by this Security Instrument. Notwithstanding the foregoing, Borrower and Fee Owner shall appear and defend in any action or proceeding which affects or purports to affect the Property and any interest or right therein, whether such proceeding affects title or any other rights in the Property (and in conjunction therewith, Borrower and Fee Owner shall fully cooperate with Lender in the event Lender is a party to such action or proceeding). ARTICLE 13 - WAIVERS Section 13.1 MARSHALLING AND OTHER MATTERS. Borrower and Fee Owner hereby waive, to the extent permitted by law, the benefit of all appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale hereunder of the Property or any part thereof or any interest therein. Further, Borrower and Fee Owner hereby expressly waive any and all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on behalf of Borrower or Fee Owner, and on behalf of each and every person acquiring any interest in or title to the Property subsequent to the date of this Security Instrument and on behalf of all persons to the extent permitted by applicable law.THE WAIVER OR WAIVERS SET FORTH HEREIN ARE KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND FEE OWNER BORROWER AND FEE OWNER FURTHER ACKNOWLEDGE THAT BORROWER AND FEE OWNER HAVE READ AND UNDERSTAND THE MEANING OF THIS WAIVER PROVISION AND AS EVIDENCE OF THIS FACT SIGN THEIR INITIALS. (Initials of Borrower) (Initials of Fee Owner) Section 13.2 WAMR OF NOTICE. Borrower and Fee Owner shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this .44. JPMORAN CHASE BANK (11/99) 33051301.03 Bpi 1744PGO227 Security Instrument specifically and expressly provides for the giving of notice by Lender to Borrower and Fee Owner and except with respect to matters for which Lender is required by applicable law to give notice, and Borrower and Fee Owner hereby expressly waive the right to receive any notice from Lender with respect to any matter for which this Security Instrument does not specifically and expressly provide for the giving of notice by Lender to Borrower or Fee Owner. THE WAIVER OR WAIVERS SET FORTH HEREIN ARE KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND FEE OWNER BORROWER AND FEE OWNER FURTHER ACKNOWLEDGE THAT BORROWER AND FEE OWNER HAVE READ AND UNDERSTAND THE MEANING OF THIS WAIVER PROVISION AND AS EVIDENCE OF THIS FACT SIGN THEIR INITIALS. (Initials of Borrower) (Initials of Fee Owner) Section 13.3 SOLE DISCRETION OF LENDER. Wherever pursuant to this Security Instrument Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide that arrangements or terms are satisfactory or not satisfactory shall be in the sole discretion of Lender and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein. Section 13.4 SURVIVAL. The indemnifications made pursuant to Artie 11 shall continue indefinitely in full force and effect and shall survive and shall in no way be impaired by: any satisfaction or other termination of this Security Instrument, any assignment or other transfer of all or any portion of this Security Instrument or Lender's interest in the Property (but, in such case, shall benefit both Indemnified Parties and any assignee or transferee), any exercise of Lender's rights and remedies pursuant hereto including but not limited to foreclosure or acceptance of a deed in lieu of foreclosure, any exercise of any rights and remedies pursuant to the Note or any of the Other Loan Documents, any transfer of all or any portion of the Property (whether by Borrower or Fee Owner or by Lender following foreclosure or acceptance of a deed in lieu of foreclosure or at any other time), any amendment to this Security Instrument, the Note or the Other Loan Documents, and any act or omission that might otherwise be construed as a release or discharge of Borrower from the obligations pursuant hereto. Section 13.5 WAIVER OF TRIAL BY JURY. BORROWER AND FEE OWNER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS SECURITY INSTRUMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING -45- JPMORAN C&kSE BANK (11199) 53051501.03 gK 11 4 4 ``a O Z 2 8 IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER AND/OR FEE OWNER; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND FEE OWNER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND FEE OWNER. THE WAIVER OR WAIVERS SET FORTH HEREIN ARE KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND FEE OWNER. BORROWER AND FEE OWNER FURTHER ACKNOWLEDGE THAT BORROWER AND FEE OWNER HAVE READ AND UNDERSTAND THE MEANING OF THIS WAIVER PROVISION AND AS EVIDENCE OF THIS FACT SIGN THEIR IMTIALS. (Initials of Borrower) Section 13.6 WAIVER OF AUTOMATIC OR SUPPLEMENTAL STAY. In the event of the filing of any voluntary or involuntary petition under the Bankruptcy Code by or against Borrower or Fee Owner (other than an involuntary petition filed by or joined in by Lender), the Borrower or Fee Owner shall not assert, or request any other party to assert, that the automatic stay under § 362 of the Bankruptcy Code shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any rights it has by virtue of this Security Instrument, or any other rights that Lender has, whether now or hereafter acquired, against any guarantor of the Debt. Further, Borrower and Fee Owner shall not seek a supplemental stay or any other relief, whether injunctive or otherwise, pursuant to § 105 of the Bankruptcy Code or any other provision therein to stay, int"ct, condition, reduce or inhibit the ability of Lender to enforce any rights it has by virtue of this Security Instrument against any guarantor of the Debt. The waivers contained in this paragraph are a material inducement to Lender's willingness to enter into this Security Instrument and Borrower and Fee Owner acknowledge and agree that no grounds exist for equitable relief which would bar, delay or impede the exercise by Lender of Lender's rights and remedies against Borrower, Fee Owner or any guarantor of the Debt. -46- JPMORAN CHASE BANK (11199) 53031501,03 BK 1744PGO229 THE WAIVER OR WAIVERS SET FORTH HEREIN ARE KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND FEE OWNER BORROWER AND FEE OWNER FURTHER ACKNOWLEDGE THAT BORROWER AND FEE OWNER HAVE READ AND UNDERSTAND THE MEANING OF THIS WAIVER PROVISION AND AS EVIDENCE OF THIS FACT SIGN THEIR INITIALS. (Initials of Borrower) (Initials of Fee Owner) ARTICLE 14 - NOTICES Section 14.1 NOTICES. All notices or other written communications hereunder shall be deemed to have been properly given (i) upon delivery, if delivered in person or by facsimile transmission with receipt acknowledged, (ii) one (1) Business Day after having been deposited for overnight delivery with any reputable overnight courier service, or (iii) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to Borrower or Fee Owner: LEXINGTON KINGSTON MAIN L.P. c/o Lexington Corporate Properties Trust 355 Lexington Avenue New York, New York 10017 Attention: Facsimile: No. With a copy to: Eiseman Levine Lehrhaupt & Kakoyiannis 845 Third Avenue New York, New York Attention: Jonathan Eiseman, Esq. Facsimile No.: (212) 355-4608 If to Lender. JPMORGAN CHASE BANK c/o J.P. Morgan Mortgagc Capital, Inc. 400 Perimeter Center Terrace Suite 575 Atlanta, Georgia 30346 Attention: L. Edward Register, Jr. Facsimile No.: (770) 351-8398 -47- JPMORAN CHASE HANK (11/99) 53051501.03 SKI 7 4 4 PG 0 2 3 0 With a copy to: Roseman & Colin LLP 401 South Tryon Street, Suite 2600 Charlotte, North Carolina 28202 Attention: William P. McMillan, Esq. Facsimile: No.: (704) 444-2060 or addressed as such party may from time to time designate by written notice to the other parties. For purposes of this subsection, the term "Business Day" shall mean a day on which commercial banks are not authorized or required by law to close in New York, New York. Any party by notice to the other parties may designate additional or different addresses for subsequent notices or communications. ARTICLE 15 - APPLICABLE LAW Section 15.1 GOVERNING LAW: JURISDICTION. This Security Instrument shall be governed by and construed in accordance with applicable federal law and the laws of the Commonwealth of Pennsylvania, the state where the Property is located, without reference or giving effect to any choice of law doctrine. Borrower and Fee Owner hereby irrevocably submit to the jurisdiction of any court of competent jurisdiction located in the state in which the Property is located in connection with any proceeding arising out of or relating to this Security Instrument. Section 15.2 USURY LAWS. This Security Instrument and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the Debt at a rate which could subject the holder of the Note to either civil or criminal liability as a result of being in excess of the maximum interest rate which Borrower is permitted by applicable law to contract or agree to pay. If by the terms of this Security Instrument or the Note, Borrower is at any time required or obligated to pay interest on the Debt at a rate in excess of such maximum rate, the rate of interest under the Security Instrument and the Note shall be deemed to be immediately reduced to such maximum rate and'the interest payable shall be computed at such maximum rate and all prior interest payments in excess of such maximum rate shall be applied and shall be deemed to have been payments in reduction of the principal balance of the Note. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the Debt shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Note until payment in fall so that the rate or amount of interest on account of the Debt does not exceed the maximum lawful rate of interest from time to time in effect and applicable to the Debt for so long as the Debt is outstanding. Section 15.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and remedies provided in this Security Instrument may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of law and are intended to be limited to the extent necessary so that they will not render this Security Instrument invalid, unenforceable or not entitled to be recorded, registered or filed under the provisions of any -48- JPMORAN CHASE BANK (11,99) 53051501.03 BK 17 4 4 PG 0 2 31 applicable law. If any term of this Security Instrument or any application thereof shall be invalid or unenforceable, the remainder of this Security Instrument and any other application of the term shall not be affected thereby. ARTICLE lb - SECONDARY MARKET Section 16.1 TRANSFER OF LOAN. Lender may, at any time, sell, transfer or assign the Note, this Security Instrument and the Other Loan Documents, and any or all servicing rights with respect thereto, or grant participations therein 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"). Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor in such Securities or any Rating Agency (as hereinafter defined) rating such Securities (collectively, the "Investor") and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Fee Owner, any Guarantor, any Indemnitor and the Property, whether furnished by Borrower, Fee Owner, any Guarantor, any Indemnitor or otherwise, as Lender determines necessary or desirable. The term "Rating Agency" shall mean each statistical rating agency that has assigned a rating to the Securities. ARTICLE 17 - COSTS Section 17.1 PERFORMANCE AT BORROWER'S EXPENSE. Borrower acknowledges and confirms that Lender shall impose certain reasonable administrative processing and/or commitment fees in connection with (a) the extension, renewal, modification, amendment and termination (excluding the scheduled maturity of the Note) of its loans, (b) the release or substitution of collateral therefor, or (c) obtaining certain consents, waivers and approvals with respect to the Property (the occurrence of any of the above shall be called an "Event"). Borrower hereby acknowledges and agrees to pay, immediately, upon demand, all such fees (as the same may be increased or decreased from time to time), and any additional fees of a similar type or nature which may be reasonably imposed by Lender from time to time, upon the occurrence of any Event. Section 17.2 ATTORNEY'S FEES FOR ENFORCEMENT. (a) Borrower shall pay all reasonable legal fees incurred by Lender in connection with (i) the preparation of the Note, this Security Instrument and the Other Loan Documents and (ii) the items set forth in Section 17.1 above, and (b) Borrower shall pay to Lender on demand any and all expenses, including legal expenses and reasonable attorneys' fees, incurred or paid by Lender in protecting its interest in the Property or Personal Property and/or collecting any amount payable or in enforcing its rights hereunder with respect to the Property or Personal Property, whether or not any legal proceeding is commenced hereunder or thereunder and whether or not any default or Event of Default shall have occurred and is continuing, together with interest thereon at the Default Rate from the date of payment or incurring by Lender until paid by Borrower. ARTICLE 18 - DEFINITIONS Section 18.1 GENERAL DEFINITIONS. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, words used in this Security _49- JFMORAN CHASE BANK (11/99) 33051%1.03 BX 1744PG0232 Instrument may be used interchangeably in singular or plural form and the word "Borrower" shall mean "each Borrower and any subsequent owner or owners of the leasehold estate in the Property or any part thereof or any interest therein," and the word "Fee Owner" shall mean "each Fee Owner and any subsequent owner or owners of the fee estate in the Property or any part thereof or any interest therein," the word "Lender" shall mean "Lender and any subsequent holder of the Note," the word. "Note" shall mean "the Note and any other evidence of indebtedness secured by this Security Instrument," the word "person" shall include an individual, corporation, partnership, trust, unincorporated association, government, governmental authority, and any other entity, the word "Property" shall include any portion of the Property and any interest therein, and the phrases "attorneys' fees," "legal fees" and "counsel fees" shall include any and all reasonable attorneys', paralegal and law clerk fees and disbursements, including, but not limited to, fees and disbursements at the pre- trial, trial and appellate levels incurred or paid by Lender in protecting its interest in the Property, the Leases and the Rents and enforcing its rights hereunder. ARTICLE 19 - MISCELLANEOUS PROVISIONS Section 19.1 NO ORAL CHANGE. This Security instrument, the Note, and the Other Loan Documents and any provisions hereof or thereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower, Fee Owner or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. Section 19.2 LIABILITY. If Borrower or Fee Owner consists of more than one person, the obligations and liabilities of each such person hereunder shall be joint and several. This Security Instrument shall be binding upon and inure to the benefit of Borrower, Fee Owner and Lender and their respective successors and assigns forever. Section 19.3 INAPPLICABLE PROVISIONS. If any term, covenant or condition of the Note or this Security Instrument is held to be invalid, illegal or unenforceable in any respect, the Note and this Security Instrument shall be construed without such provision. Section 19.4 HEADINGS. ETC. The headings and captions of various Sections of this Security Instrument are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof Section 19.5 DUPLICATE QRIGINALS: COUNTERPARTS. This Security Instrument may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. This Security Instrument may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Socurity Instrument. The failure of any party hereto to execute this Security Instrument, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. -50- JPMORAN CHASE BANK (I V99) 53051501.03 811I744PGO233 Section 19,6 NI 3ER AND GENDER. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. Section 19.7 SUBROGATION. If any or all of the proceeds of the Note have been used to extinguish, extend or renew any indebtedness heretofore existing against the Property, then, to the extent of the funds so used, Lender shall be subrogated to all of the rights, claims, liens, titles, and interests existing against the Property heretofore held by, or in favor of, the holder of such indebtedness and such former rights, claims, liens, titles, and interests, if any, arc not waived but rather are continued in full force and effect in favor of Lender and are merged with the lien and security interest created herein as cumulative security for the repayment of the Debt, the performance and discharge of Borrower's obligations hereunder, under the Note and the Other Loan Documents and the performance and discharge of the Other Obligations. Section 19.8 ENTIRE AGREEMENT. The Note, this Security Instrument and the Other Loan Documents constitute the entire understanding and agreement between Borrower, Fee Owner and Lender with respect to the transactions arising in connection with the Debt and supersede all prior written or oral understandings and agreements between Borrower, Fee Owner and Lender with respect thereto. Borrower and Fee Owner hereby acknowledge that, except as incorporated in writing in the Note, this Security Instrument and the Other Loan Documents, there are not, and were not, and no persons are or were authorized by Lender to make, any representations, understandings, stipulations, agreements or promises, oral or written, with respect to the transaction which is the subject of the Note, this Security Instrument and the Other Loan Documents. Section 19.9. RECORDING. Lender shall promptly cause this Security Instrument to be duly recorded in the Office for the Recording of Deeds and Mortgages in and for County, Pennsylvania and shall pay all recording fees and other costs incurred in connection therewith. Section 19.10 NOT A RESIDENTIAL MORTGAGE. This Mortgage is not a residential mortgage as that term is defined in 41 P.S.101 et soq. or Act 91 of 1983. Section 19.11 COPY OF MORTGAGE. Borrower and Fee Owner acknowledge receipt of a copy of this Security Instrument without cost to the Borrower or the Fee Owner. ARTICLE 20 - GROUND LEASE PROVISIONS (a) Borrower will: (i) pay the rent reserved by the Ground Lease as the same becomes due and payable; (ii) promptly perform and observe all of the covenants, agreements, obligations and conditions required to be performed and observed by the Borrower under the Ground Lease, and do all things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify Lender in writing of the commencement of a proceeding under the foderal bankruptcy laws by or against Borrower or the ground lessor under the Ground Lease; (iv) if any of the indebtedness secured hereby remains unpaid at the time when notice may be given by the Lender under the Ground Lease of the exercise of any right to renew or extend the term of the Ground Lease, promptly give notice to the ground lessor of the exercise of such right of extension BKI744PGO234 -51 - JPMORAN CHASE BANK (11/99) 53051501.03 or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are deposited with any person other than Lender, promptly notify Lender in writing of the name and address of the person with whom such proceeds have been deposited and the amount so deposited; (vi) promptly notify the Lender in writing of the receipt by the Borrower of any notice (other than notices customarily sent on a regular periodic basis) from the ground lessor under the Ground Lease and of any notice noting or claiming any default by the Borrower in the performance or observance of any of the terms, covenants, or conditions on the part of the Borrower to be performed or observed under the Ground Lease; (vii) promptly notify the Lender in writing of the receipt by the Borrower of any notice from the ground lessor of any termination of the Ground Lease pursuant to the provisions of the Ground Lease; (viii) promptly cause a copy of each such notice received by the Borrower from the ground lessor under the Ground Lease to be delivered to the Lender, and (ix) promptly notify Lender in writing of any request made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and of the institution of any arbitration or appraisal proceedings and promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in each such proceeding. (b) Borrower will not surrender the Ground Lease or Borrower's leasehold estate and interest therein, nor terminate or cancel the Ground Lease; and will not, without the prior written consent of Lender modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and as further security for the repayment of the indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives as ground lessee under the Ground Lease to terminate, cancel, modify, change, supplement, alter or amend thc Ground Lease and any such termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, without the prior written consent thereto by Lender, shall be void and of no force and effect. Without limiting the generality of the foregoing, Borrower will not reject the Ground Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, or allow the Ground Lease to be deemed rejected by inaction and lapse of time, and will not elect to treat the Ground Lease as terminated by the ground lessor's rejection of the Ground Lease pursuant to 11 U.S.C. Section 365(hxl) or any successor law, and as further security for the repayment of the indebtedness secured hereby and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives of Borrower and Borrower's bankruptcy trustee to deal with the Ground Lease, which right may arise as a result of the commencement of a proceeding under the federal bankruptcy laws by or against Borrower or ground lessor under the Ground Lease, including, without limitation, the right to assume or reject, or to compel the assumption or rejection of the Ground Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, the right to seek and obtain extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the Ground Lease as terminated by the ground lessor's rejection of the Ground Lease or to remain in possession of the Property and offset damages pursuant to l l U.S.C. Section 365(b)(1) or any successor law; and any exercise of such rights, privileges or BK 17 4 4 PG 0 2 3 5 -52- RMORAN CHASE BANK 01/99) 53051501.07 prerogatives by Borrower or Borrower's bankruptcy trustee without the prior written consent thereto by Lender shall be void and of no force and effect. No release or forbearance of any of Borrower's obligations as ground lessee under the Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release Borrower from any of its obligations under this Security Instrument, including, but not limited to, Borrower's obligations with respect to the payment of rent as provided for in the Ground Lease and the observance and performance of all of the covenants, agreements, obligations and conditions contained in the Ground Lease to be observed and performed by the ground lessee thereunder. Borrower hereby expressly grants to Lender, and agrees that Lender shall have, the absolute and immediate right (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) to enter in and upon the Property or any part thereof, to such extent and as often as Lender, in its sole discretion, deems necessary or desirable in order to prevent or to cure any default by Borrower. Lender may immediately pay and expend such sums of money (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) as Lender, in its sole discretion, deems necessary to prevent or cure any default by Borrower, and Borrower hereby agrees to pay to Lender, immediately and without demand, all such sums so paid and expended by Lender, together with interest thereon from the date of each such payment at the Default Rate as specified in the Note. All sums so paid and expended by Lender, and the interest thereon, shall be added to and be secured by the lien of this Security Instrument. Unless Lender shall otherwise expressly consent in writing, the foe title to the real property demised by the Ground Lease and the leasehold estate thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the union of such estates either in the Borrower, the Lender or in a third party by purchase or otherwise. (c) The Borrower will, within ten (10) days after written demand from the Lender, use its best efforts to obtain from the ground lessor under the Ground Lease and deliver to the Lender a certificate stating that such ground lease is in full force and effect, is unmodified, that no notice of termination thereon has been served on the Borrower, stating the date to which the net rent has been paid and stating whether or not there are any defaults thereunder and specifying the nature of such defaults, if any. (d) The Borrower will furnish to the Lender, upon demand, proof of payment of all items which are required to be paid by the Borrower pursuant to the Ground Lease. -53- JPMORAN CHASE BANK (1 V99) 53051501.03 BK 17 4 4 PG 0 2 3 6 IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by Borrower the day and year first above written. CONFESSION OF JUDGMENT. THIS SECURITY INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT. JUDGMENT MAY BE ENTERED WITHOUT A HEARING OR NOTICE. THESE ARE TWO PROCEDURAL SAFEGUARDS IN OUR LEGAL SYSTEM. THEY ARE WAIVED WHEN A CONFESSION OF JUDGMENT CLAUSE IS INCLUDED IN A DOCUMENT. THE UNDERSIGNED KNOWINGLY HAS WAIVED NOTICE AND A HEARING PRIOR TO THE ENTRY OF JUDGMENT. BORROWER: LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership By: LEXINGTON KINGSTON MAIN INC., a Delaware corporation, its general partner By: Name: Title: FEE OWNER: LEPERCQ CORPORATE INCOME FUND, L.P., a Delaware limited partnership By: LEX GP-1, Inc. its general partner, a Delaware coop on By: Name: c (L rA Title: (/r ?t t4.- -y 066ftG 8N1744PG0237 SfArr or Nfw;114le COUNTY OF IJC?Lt, AeA } On this day of beCCiyw1y-.e" , 2001, before me, the undersigned officer, a notary public in and for said County, personally appeared Patrick Carroll, who acknowledged himself/herself to be the Vice President of Lexington Kingston Main Inc., a Delaware corporation, general partner of LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership, and that he/she being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing as Vice President of the corporation as general partner of the limited partnership. IN WITNESS WHEREOF, I hcreugto set my hand and official seal. r 902ary Public [AFFIX SEAL) My commission expires: Ala f+ ARt) s ROMM NO- ahSV9 -4 .4684 ow. -55- JPMORAN CHASE BANK(i IM) BKI744PGO238 53051501.03 ST A r? ?v?W ?t ?PK COUNTY OF l v?M Yd On this day of k-e'kK 2001', before me, the undersigned officer, a notary public in and for said County, personally appeared Patrick Carroll, who acknowledged himself/herself to be the Vice President of Lex-GPI, Inc., a Delaware corporation, general partner of Lepercq Corporate Income Fund, L.P., a Delaware limited partnership, and that he/she being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing as Vice President of the corporation aS general partner of the limited partnership. IN WITNESS WHEREOF, I hereunto s my hand and official seal. d _ No ublic [AFFIX SEAL] My commission expires: / - S , . Of win *9.62?-o - 56 - RMORAN CHASE BANKO 1/99) 53051501.03 BK 1 7 4 4 PG 0 2 3 9 CERTIFICAJE OF RESIDENCE hereby certify that Lender's address is as follows: JPMorgan Chase Bank 270 Park Avenue New York, New York 10017 JPMORGAN CHASE BANK, a New York banking corporation By: Print Name: Title: Authorized Signatory STATE OF COUNTY OF 1, , a Notary Public of the County and State aforesaid, certify that , as of JPMORGAN CHASE BANK, a New York banking corporation, personally appeared before me this day and acknowledged the execution of the foregoing instrument on behalf of said corporation. WITNESS my hand and official stamp or seal this day of 2001. Notary Public My Commission expires: [Notary Scal) 8K I 7 4 4 PG 0 2 4 0 -57. JPMORAN CHASE BANK(I 1/99) 53051501.03 EXHIBIT A (Description of Land) All of that certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being described as follows: A-1 JPMORaANCHASE BANK (11/99) 53051501.o3 8K 17 4 4 PG 0 2 41 UkL?-12-2001 16:36 COMMONWERLTH LAND P.06/06 ST. POLICY NO. D304819CP EXHIBIT A ALL THAT CERTAIN piece or parcel of land with the buildings and improvements thereon erected situate in Silver spring Township, Cumberland County, Pennsylvania, being bounded and described according to an ALTA/AGSM Land Title survey made by Hartman & Associates, Inc., Engineers & Surveyors, dated November 21, 2001 revised December 6, 2001 as follows, to wit; BEGINNING at a railroad spike set, on the southern right-of-way line of the Carlile Pike, Route No. 11, Eastbound at the Northwest corner of lands now or formerly of Shaffer Trucking, Inc., recorded in Record Book 101 page 897; thence through Dauphin Drive (50 feet right-of-way) South 23 degrees 27 minutes 57 aeconds Bast the distance of 1051.06 feet co a point; thence along lands Dauphin Distribution Services Company South 66 degrees 06 minutes 13 seconds West the distance of 590.13 feet to a point; thence along the eastern line of lands now or late of Anderson H. Walters Trust North 23 degrees 53 minutes 47 seconds West the distance of 706.93 feet to a point; thence along now or late of Shaffer Trucking, Inc. North 74 degrees 33 minutes 56 seconds East the distance of 133.25 feet to a point; thence continuing along same North 66 degrees 32 minutes 03 seconds East the distance of 434.09 feet to a point on the westerly rigght-of-way line of Dauphin Drive; thence along the said western right-of-way line Dau hin Drive North 23 degrees 27 minutes 57 seconds West the distance of 90.65 feet to a point on the Southern right-of-way line of*Carliels Pike, Route No. 11, Eastbound; thence along the southern right-of-way line of Carlisle Pike, Route No. 11, Eastbound North 73 degrees 05 minutes 21 seconds East the distance of 30.20 feet to a point, the place of beginning, BEING Lot No. 1-B for Dauphin Distribution Services Co. as recorded in Plan Book 44, Page 2:3, ALSO BEING Tract No. 2-A for Exel Logistics as recorded in Plan Book 63, Page 91. TOGETHER with the right of Grantor to use and enjoy in common with others the appurtenant easements set forth in Cumberland County miscellaneous Book 266, Page 276 and Miscellaneous Book 266, Page 262. ALSO, TOGETHER with the easement and right-of-way granted by H. C. Gabler, Inc. dated November 13, 1991 and recorded Ln Cumberland County Miscellaneous Book 407, Page 437. i Certi Fy this to be recorded In Cumberland County PA PA 20 ALTA Loan Policy - 1992 (Amended 10/17/1992) Recorder of Deeds BK 1 7 4 4 PG 0 2 4 2 TOTRL P. 06 EXHIBIT C X770 I C"5ERl_ P. ZIEGLER ;;_0011uER OF DEEDS BERLAND COUNTY--r),. 03 MRR 28 AIR 11 15 ASSIGNMENT OF FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT by JPMORGAN CHASE BANK, a New York banking corporation, the Assignor to WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE ON BEHALF OF THE CERTIFICATE HOLDERS OF J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CI, the Assignee Date; August 26, 2002 PREPARED BY AND UPON RECORDATION RETURN TO: Anderson, McCoy dt Ofta 100 N. Broadway, Suite 2650 Oklahoma City, OK 73102 AMO File No. 707.007 ASN No. 1900 800K 695 PACE 395 5 THIS ASSIGNMENT OF FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (the "Assi') is executed as of the 26th day of August, 2002, by JPMORGAN CHASE BANK, a New York banking corporation, having its principal place of business at 270 Park Avenue, New York, NY 10017, (the "Assianoi''), to WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE ON BEHALF OF THE CERTIFICATE HOLDERS OF J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2002-C1, having an office at 751 Kasota Avenue, Suite MDC, Minneapolis, Minnesota 55414 (the "Assigml . BACKGROUND WHEREAS, on December 21, 2001, the Assignor made a loanto LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership, (the `Borrower"), in the original amount of Three Million Five Hundred Fifty Thousand and no/100 Dollars ($3,550,000.00) (the' j&W }, which Loan is evidenced by that certain Fixed Rate Note dated December 21, 2001, executed by Borrower and payable to the order of the Assignor in the principal amount as aforesaid (the "U&'D; WHEREAS, the obligations of the Borrower under the Loan and the Note are secured by, among other things that certain Fee and Leasehold Mortgage and Security Agreement (the "Mortgage'), dated as of December 21, 2001, executed byBorrower and LEPERCQ CORPORATE INCOME FUND, L.P., a Delaware limited partnership and recorded on December 27, 2001, in Book 1744, Page 0178, with the Recorder of Deeds of Cumberland County, State of Pennsylvania. WHEREAS, Assignor endorsed the Note to Assignee and; WHEREAS, Assignor desires to assign its interest in the Mortgage to Assignee,. For $10.00 and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby assigns and transfers to Assignee, without recourse, representation or warranty, expressed or implied, all of Assignor's right, title and interest in, to and under the Mortgage, to have and to hold unto Assignee, its successors and assigns, forever. I Certify this to be recorded In Cumberland County PA l y? /'f Recorder of V;i-: o BOOK 695 PAGE3956 Witness: Name: v ASSIGNOR: JPMORGAN CHASE BANK, a New York banking oratio By: Corp Name: L. Edward Register, Jr. Title: Authorized Signatory STATE OF GEORGIA COUNTY OF DEKALB On thew A day of 1 2002, before me, the undersigned, a Notary Public in and for said state, personally app" L. Edward Register, Jr., personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the some in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. My Commission Expires: T tq, o? Siguature: UUA I J?Ad 4N V taryPubli`?a++u+uniiuia a` QUA C. ?•??? J'v?+gg'0M ?r0 * i JULY ?,. 2006 ?i2Q ?NCO "till I Ill o0" 1 Certify this to be J-Ccur+ied in Cumberland County r ; booK 695 PACE 395'7 EXHIBIT D V 1111iii lO THIS DOCUMENT PREPARED BY AND UPON RECORDATION RETURN TO: VANESSA ORTA, ESQ. ANDERSON, McCOY & ORTA, P.C. 100 North Broadway, Suite 2600 Oklahoma City, Oklahoma 73102 Telephone: 888-236-0007 AMO ID: 1958.067 Loan/File Name: Exel Logistics-34 E. Main Custodian ID: 752002CI Cumberland County, Pennsylvania 38-19'-16 ZI -O??o I do certify that the precise address of the within named Assignee is as it appears in the body of this instrument. I ?- 2zagJaLCA ? ! ?___: ate, Vanessa Orta, Esq. ASSIGNMENT OF FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT KNOW THAT WELLS FARGO BANK, N.A., SUCCESSOR BY-MERGER TO WELLS FARGO BANK MINNESOTA. N.A.. AS TRUSTEE FOR THE REGISTERED HOLDERS OF J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL_ MORTGAGE PASS-THROUGH CERTIFICATES. SERIES 2002- 1 as predecessor trustee, having an address at 1055 l Oth Avenue SE, Minneapolis, MN 55414 ("Assignor"), For valuable consideration given by: U.S. BANK NATIONAL AtiSSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF J.P. MORGAN CHASE COMMERCIAL MORTGAGE UWfIFICATES. SERIES 2002-0. as successor trustee, having an address at 209 South LaSalle Street, Suite 300, Chicago, IL, 60604 ("Assignee"), the receipt and sufficiency of which is hereby acknowledged, Assignor does hereby grant, bargain, sell, convey, assign, transfer, and set over, without recourse, representation and warranty, except as set forth in that certain related Agreement, all of Assignor's right, title and interest, of any kind whatsoever, in and to the subject note(s) and loan documents, and including that of mortgagee, beneficiary, payee, assignee or secured party (as the case may be), in and to the following: FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (as same may have been amended)by Lexington Kingston Main L.P., a Delaware limited partnership, and Lepercq Corporate Income Fund L.P., a Delaware limited partnership ("Borrower"), to JPMORGAN CHASE BANK, N.A., a national associated charter ("Lender"), and recorded December 27, 2001, in Book 1744, Page 0178, in the Real Estate Records pertaining to the land situated in the State of Pennsylvania, County of Cumberland ("Real Estate Records"); the foregoing instrument(s) assigned to Assignor by Assignment instrument(s) recorded March 28, 2003, in Book 695, Page 3955, in the Real Estate Records; TO HAVE AND TO HOLD the same unto the Assignee and to the successors, legal representatives and assigns of the Assignee forever. IN WITNESS WHEREOF, the Assignor has caused these presents to be effective as of March 31, 2009. (The remainder of this page has been intentionally left blank.) Executed as of the 6`h day of July, 2009. ASSIGNOR: WELLS FARGO BANK, N.A., SUCCESSOR-BY-MERGER TO WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CI By: Anderson, McCoy and Orta, a professional corporation, Attorney-in-Fact, pursuant to Limited ower of Attorney reco ed in the Real Estate ciiz sBy: ?a- Name: Vanessa A. Orta Title: President 4 11 C) QS STATE OF OKLAHOMA j J/ )'S+rume Tf" COUNTY OF OKLAHOMA ) ?Uata 2cdlqq / 0 This instrument was acknowledged before me, the undersigned Notary Public, on the 61h day of July, 2009, by Vanessa A. Orta, who personally appeared and is known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity as President of Anderson, McCoy & Orta, a professional corporation, as Attorney-in-Fact for Wells Fargo Bank, N.A., successor-by- merger to Wells Fargo Bank Minnesota, N.A., as Trustee for the Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C1, and that by her signature on the instrument, the entity upon behalf of which she acted, executed the instrument. WITNESS my hand and official seal. My Commission Expires: `111111t111I l l (flll?ll, C• sic 1958 = ; # p2e07707 EXP. 03110 C Signature: ! ',,nqr .?U61??r Pao ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200942696 Recorded On 12/29/2009 At 9:51:23 AM * Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number - 58343 User ID - AF * Mortgagor - LEPERCQ CORP INCOME FUND L P * Mortgagee - J P MORGAN CHASE BANK N A * Customer - ANDERSON ET AL * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $50.50 I Certify this to be recorded in'Cumberland County PA * Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. RECORDER O? ' - Information denoted by an asterbh may change during the verification process and may not be reflected on this page. WORVO 111111111111111111111 EXHIBIT E W 11 /T,-, 316-1?-Low-0bbo ,/ B?IIIIC (Space above is for Recorder's use) PREPARED BY: BILZIN, SUMBERG, BAENA, PRICE &AXELROD, LLP 200 S. Biscayne Blvd, Suite 2500 Miami, Florida 33131-5340 And When Recorded Mail To: Record & Return to: Attn: Deb Poppe Poppe Mortgage Services 17006 Seven Pines Drive Spring, Texas 77379 Loan Amount: $3,550,000.90 U.S. Bank National Association, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C1 ("Assignor"), whose address is c/o LNR Partners, Inc., 1601 Washington Avenue, Suite 700, Miami Beach, Florida 33139, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby assigns, transfers, sets over and conveys to German American Capital Corporation, a Maryland corporation ("Assignee"), whose address is 60 Wall Street, New York, New York 10005, all Assignor's right, title and interest in and to the For. and Leasehold Mortgage and Security Agreement (the "Security Instrument") dated December 21, 2001, made by Lexington Kingston Main L.P.,, a Delaware limited partnership and Lepercq Corporate Income Fund, L.P., a Delaware limited partnership, as Fee Owner in favor of JPMorgan Chase Bank, a New York banking corporation ("Original Lender") recorded on December 27, 2001, in Mortgage Book 1744, Page 178 with the Recorder of Deeds of Cumberland County, Pennsylvania (the "Records', as assigned by: (i) Original MIAM122215283 7249633462 Lender to Wells Fargo Bank Minnesota, N.A., as trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Scrics 2002-C1 ("Lender #2"), pursuant to that certain Assignment of Fee and Leasehold Mortgage and Security Agreement dated as of July 23, 2003, recorded in Misc. Book 695, Page 3955 of the Records; and (ii) Lender 42 to Assignor, pursuant to that certain Assignment of Fee and Leaschold Mortgage and Security Agreement recorded on December 29, 2009, as Instrument No. 200942696 in the Records, as the same may have been assigned, amended, supplemented, restated or modified, hereto. The Security Instrument relates to the real property described in Schedule A attached TO HAVE AND TO HOLD the same unto Assignee and its successors and assigns forever. This Assignment is made without recourse or representation or warranty, express, implied or by operation of law, of any kind and nature whatsoever. The foregoing paragraph shall not impair Assignor's representations and warranties expressly made in the Agreement for Sale and Purchase of Loan dated , 2010 between the Assignor and Assignee. [THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY] MIAMI 222I523.1 7249633462 2 IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of Ajt- 01 2010. Signature: Print Name: Signature: Print Name: STATE OF FLORIDA ) SS.. COUNTY OF MIAMI-DADE ) U.S. Bank National Association, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-CI By: LNR Partners, Inc., a Florida corporation, its attorney-in-fact Randolph J. wolpert i president By: _ Name: _ Title: Vice President oP The foregoing inst ent was acknowledged before me this (P day of. ', 2410, by p as Vice President of LNR Partners, Inc., a Florida corpora on, on behalf of said c rporatio as attorney-in-fact for U.S. Bank National Association, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C1. He is ? personally known to me or has produced a Florida driver's license as identification. My Commission Expires: [NOTARIAL SEAL] Print Name: w C ,Putt NOTARY SEAL: Serial No., if any: g MARAE.RN gu . r 7R' MY cOA1MIZOOM" PIRES:Alay2t,2014 Banded TMU NOlary Public uah ex: YW I{x M WAMI 2179812.1 7249633462 SCHEDULE A LEGAL DESCRIPTION All of that certain lot, piece or p"l of land, with the buildings and improvements thcreoN situate, lying and being described as follows: ALL THAT CERTAIN piece or psircel of land with the buildit9a and improvehenta thereon erected situate in 611ver spring Township, Cumberland County, Pennsylvania, being bounded and desoribed according to an ALTA/ACSM Land Title Survey made by Hartman & Associates, Inc., Engineers & Surveyors, dated November 21, 2001 revised December 6, 2001 a.e follows, to wits BEGINNING at a railroad spike set, on the southern rigght-of-way line of the Carlile Pike, Routh No. 11, eastbound at the Northweat corner of lands now or formerly of Shaffer Trucking, Inc. zecorded in Record Book 101 page 8971 thence through Dauphin Drive (50 feet right-of-way) South 23 degreea 27 minutes 57 ,seconds Seat the distance of 1052.06 feet to a point; thence along lands: Dauphin Distribution Services C"pany South 66 da,srees 06 minutes 13 seconds West the distance of $90,13 feet to a point) thence alongg the eastern line of lands now or late of Anderson H. Walters Trust North 23 degrees 53 minutes 47 seconds West the distance of 786.93 feet to a point? thence along now or late of Shaffer Trucking, Inc. North 74 degreev 33 minutes $6 seconds East the distance of 133,25 feat to a point] thence continuing along same North 66 degrees 32 minutes 03 seconds East that distance of 434.09 test to a point on the westerly right-of-way line of Dauphin Drivel thence along the said western right-of-way line Dauphin Drive Worth 23 degreee 27 minutes S7 **condo Neat the distance of 290.65 feet to a point on the Southern right-of-way line of'Carliele Pike, Route No. 11, Sast:boundl thence along the southern right-of-way, line of Carliale Pike, Route No. 11, Eastbound North 73 degrees 05 cu"utee 21 seconda East the distance of 30.20 fast to a point, the plaoe of beginning, BEING Lot No. 1-B fos: Dauphin'Distribution Services Co. as recorded in Plan Hook 44, Page 23, ALSO BEING Tract No, 2-A for Sxel Logisticsa as recorded in plan sook 63, Page 91. TOGETHER with the right, of Grint0V to us6 and enjoy in common with others the appurtsaant easewmats set forth in Cumberland County Mi3cellaneous acok 266, page 276 and Miscellaneous Book 266, Page 292. ALSO, TOGETM with the easement and right-of-wayy $rant,44 by H. C' Gabler, Inc. dated November 13 1991 and recordad in Cumberland County Miscellaneous Book 407, Page 4ti7. 38--1 1 Lp21- ceo C'4 'Si kve-r :5?6t MIAMI 2221528.17249633462 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201100368 Recorded On 1/4/2011 At 1:44:10 PM * Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number - 79736 User ID - RZ * Mortgagor - LEPERCQ CORP INCOME FUND L P * Mortgagee - JPMORGAN CHASE BANK N A * Customer - POPPE MORTGAGE SERVICES LLC * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $50.50 *Total Pages - 5 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA ° RECORDER O D DS nso * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. 11111111 I?II?I?NIn EXHIBIT F ? coq Prepared By: Melba Sanchez 00006K Bayview Loan Servicing, LLC 4425 Ponce De Leon Blvd, 5d'Floor, Coral Gables, Florida 33146 RECORD AND RETURN TO: CB Title Group, LLC 140 Mountain Avenue Suite 101 Springfield, NJ 07081 C&PA -1008 UP:T--li ZB-iG-162.1-006 BV LOAN NO: 400008419 LOAN AMOUNT: S 3,550,000.00 Assignment of Fee and Leasehold Mortgage and Security Agreement FOR VALUE RECEIVED, the undersigned as ("ASSIGNOR/GRANTOR"), hereby grants, conveys, assigns to LEXINGTON K MAIN L.P. C/O LEXINGTON REALTY TRUST ONE PENN PLAZA, SUITE 4015 NEW YORK, NY 10119-4015 ("Assignee/Grantee'? all beneficial interest under that certain Fee and Leasehold Mortgage and Security Agreement dated: 12/21t2001 and executed by: Lexington Kingston Main L.P. as borrower(s) to: JP Morgan Cbase Bank as Original Lender and certain Fee and Leasehold Mortgage and Security Agreement recorded in Instrument No. WA in Volume 1744, at Page j, recorded on 12/2712001 , in the Official Records of Cumberland County, State of PA. PROPERTY ADDRESS: 34 EAST MAIN STREET NEW KINGSTOWN. PA 30144 ASSIGNMENT HISTORY: f& ATTACHED EXHIBIT "A" LEGAL DESCRIPTION: SEE ATTACHED EXHIBIT "B" TOWNSHIP OF SILVER SPRING PARCEL ID#: 38-19-1621-086 Together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said Document, Dated- January 5, 2011 With the effective date of January 7, 2011 .01/% - ess4Meja Witness ez i&SSIGNOR: GERMAN AMERICAN CAPITAL CORPORATION, a Maryland Corporation 60 Wall Street, New York, NY 10005 By: Bayview Loan Servicing, LLC a Delaware limited liability company ttoro in-tact By? RT G. VICE PRESIDENT BV #400008419 STATE OF FLORIDA ) ) SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this 5° day of a2011, b ROBERT G. HALL, as VICE PRESIDENT of BAYVIEW LOAN SERVICING, LLC, A DOES limi ability company as its attomey-in-fact for GERMAN AMERICAN CAPITAL CORPORATI ?X ho Make an oath. _X_ Personally known NOTARY PUBLIC)State of-V= 8 ROGELIO A. PORTAL 0d/ My commission Expires: 8125/2 12 Commission Number: DD 784210 Produced ID: w„ ROGELIOAFORTAL 1 1 r ~ . .0 V? ns No=j PublIc - Stile of Florida • ' = Aly Cnmmssion Expiras Aug 25, 2012 Commission # 00 7&3210 Bo OCd Through Nal mNNoal Assn. BV#: MMS419 ASSIGNMEM HISTORY F.XHYBTT "A" FEE AND LEASEHOLD MORTGAGE AND SECURTI'Y AGREEMENT dated the 21st Day of December. 2001 Made By: Lexington Kingston Main. L.P.' To: JP Morgan Chase Bank in the Principal Amount of $ 3,550,004 00, and Recorded on the I t Day of eember 1001, in Book: 1744. Page: ? and Instrument #: N/A. In the office of the county clerk of the county of Cumberlkgd. Covering the premise known as: 34 End Street. New Kingstown. PA 30144 Said Fee and Leasehold Mortgage and Security Agreement assigned to: Wells Mortg_gve PawThrough CertiHcata, Series 2002-Cl From: JPMorsan Chase Bank By assignment dated the 26th day of Aug 2002 And recorded in Book: 695. Pager L95-5 in Instrument #: IN on 308/2003. Said Fee and Leasehold Mortgage and Security Agreement assigned to: U.S. Bank National Association, as Trustee for the registered holders of J.P. Moreau Chase Commercial Mortgage Securities Coro., Commercial Mortgage Pon-- T hro eb Cert3ficatea Series 200C1 From: WeIla Fsao Bank Minnesota, N.A., as Trustee on behalf of the Certificate Holders of J.P. Morgan Chum Commercial Mortgage Securities r - __ . ..r eV • _ -AAA /'77 And recorded in Book: N/A_. Page: NIA in Inst<ment #: 209942696 on 1219/2009. Said Fee and Leasehold Mortgage and Security Agreement assigned to: German From: it's A_ _ ttoracyla Fact And recorded in Book: NIA. Page: N/A in Instrument #: 201104368 on 114/2011. Loan No: 400008419 LEGAL DESCRIPTION EXHIBIT "B" ALL THAT CERTAIN piece or parcel of land with the buildings and improvemeata thereon erected situate in Silver spring Township, ,%,.mberland county, Pennsylvania, being bounded and described according .a an ALTA/AGSM Land Title Survey made by Hartman & Associates, Inc., Engineers & Surveyors, dated November 21, 2001 revised Decemkm r 6, 2001 ae follows, to wit: BEGINNING at a railroad spike set., on the southern ight-of-way line of the Carlile Pike, Route No. 11, Eastbound at Ghe Northwest corner of lands now or formerly of ShAffet; Trucking, Inc., recorded in Record Book 101 page s97; thence through Dauphin Drive (50 feet right-of-way) So%it:h 23 degrees 27 minutes 57 seconds East the distance of 1051.06 feet ro a point; thence along lands Dauphin Distribution Services Company South 66 degrees 06 minutes 23 seconds West the distance of S90,13 feet to a point; thence along the eastern line of lands now or late of Anderson H. shelters Trust forth 23 degrees 53 minutes 47 seconds nest the distance o` 726.93 feet to a point; thence along now or late of Shaffer Trucking, Irr;. North 14 degrees 33 minutes S6 seconds East the distance of 133.25 .root to a point; thence continuing along sate North 66 degrees 32 minutes 03 seconds Boat the distance, of 434.09 feet to a point oa the westerly right-of-way line of Dauphin Drive; thence along the said western right-of-way line Dauphin Drive North 23 degrees 27 minutes 57 seconds West the distancc of 290.65 feet to a point on the Southern right-of-way line of Carlisle Pike, Route No. 11, Eastbound; thence along the southern right-o£-way line of Carlisle Pike, Route No. 11, Sascbourd North 73 degrees 45 minutes 21 seconds East the distance of 30.20 feet to 4 point, the place of beginning. BEING Lot No. 2-8 for Dauphin Distribution Services Co, an recorded in Plan book 44, Page 23, ALSO BEING Tract No. 2-A for Exel Logistics as recorded in Plan Book 63, Page 51. ^(:GaTH?R with the right of Grantor to use and enjoy in conmon with oth;re the appurtenant easements~ out forth in Cumberland County Miscellaneous Book 266, Page 274 and Miscellaneous Book 266, Page 282. ALSO, TOGBTHEit with tho easement and right-of-way granted by H. C. Gabler. Ine. dated November 13, 1991 and recorded in Cumberland County Miscellaneous Book 407, Page 437. PARCEL ID#: 38-19-1621-086 TOWNSHIP OF SILVER SPRINGS POWER OF ATTORNEY Ocn w Aaterian Cep %I CogwvtWn ("QACC ). to Mohler of leLai I& to ach not am tut on Exhibll A (wA. an "Assd L hereby appoints peyvkw Loau Savk j,.LLC (2&yVj@w*). ?n its ww std I?wiW, rttormy. InAct to act in the ssm. placid and ued of OACC for chi ptupases tai north below, This Limped Power' of Amney is alvto purwans b a attains Servicing Alpo mew by end mans CACC,11"tw oppodushy Master Fund lib, LP, tad Beywkw 6w4 Oct" 1, 2010 (the °Ajr pent") to vAkh reference is suede for the dellnition of ail capltalbCtd rernrs herein, Now tiitrr:tbm, t3ACC hereby cormitutes and appoints Bayvlew the true and lawtibl attomeyin•lov of GACC. and Is, GACC's wme, place mW mad with respect w each Awe. (iokely wlth raped to w* Amu) sen-iced by Sayview pursuant to dw Agreement for the following, and only the fallowing, f ; II To estcurt, M&4wledsa, neat WA deliver deed of "WO/nortm rM eendorsemenati assignments of deed of h'tt*tnotislcge rend ocher worded docameots, sadsimdo d nekareehecallvayapces of deed of trea%oripge. tax atdsority natiliattioma sad deelareth n, dntxik Wth of ok, end adm r instruments of ale, conveyance, sad crahahr, approfrkitelyoornpleted, wlib A ordiaM or nocomy mhdonswests, ackmowledgaet" iflldwlts, aced sapportias dommenu no may be necessary or appropriate to Au its cuoution, delivery, conveyance, recordation of filing. 2. To (1) pre wv ewrcute and deliver, an behalf of OACC, say end all fbhuhcing swcmenlo. continwtian statesnants and otker doormen or ImMtonents necessary to roglossin dw Dan an each Mortgoged Property and rclstcd colbresal; and wdifkatlons, waivers, eoxum. aolosul steaa. dreocmted payoff apvarsmga, f4tbearsm apeemeuM oath mu sputum ogrettrh o or rapnsenta to a v,itb raapoct to any dom meaLt tonlalak4 h the rolowd servicing file; and my and all leatrumnia of satla4ctiw or emtaWttoa, a of partial or roll release or discWp, and all odrer iraxpuracats comperaWs to mW of the types of konows described in this eiause (I), std (Il) icacitote and pmoseeuu judloW hind no Hutlictal fareelessm, wets an peniewy recess. indantdties. Vireo ties or olhcr domunts, sai mu For equitable aadtor ostraotdkwy idler (incka tors, About limitellon, actioral for #mprory rrstrall*44 "M itjumiont, and appoWmonl of rerelver4 mks for waste. fiaad and any sari alt other tort, cowwwl atrl/or other 4 Ws or wfiamvor uslur, and to appear in and file on behalf of GACC sob pleadings or documaLs on tray be necessary or advisable in aq bunkuprcy eCtim era or re&nsl sail or may other anion. s. To mmoct business of any kbsd resarding the Assets, std obtain on interest tkrtbl and/or bulkttsg thereon, is QACC'.a act end dead, to contact nor, pwcbm, mocive and u dkd possess" and evidence of thk in and to the property w4lor to geodes payment of a gumissary note or pwfomunce of my obligation or agremm*nt_ 4, To exotuw and deliver affidavits of debt, albatitutlons of uutue, substitutions of couruel, non-millary s iidavits, notices of rev issim forecloaacre dew ttanSW tax swwa* affidavits of Nwit. ririfiaaion of moplafnt, notices, to quit, bankruptcy declarations for the ptrcpost of ftligj motions to lift stays and other documoats or ashes filings on bdtalf of GACC In conatdlon with f oriokwte, bankruptcy and eviction actions. 5. To order andlor assign cheeks or negotiable insuv%*w# reotived by Bayriew B a Monthly Payment. OACC Mo1w tmi to Its anatvty W-fcnx sell audto* to act in any. ntarnter both proper sod nocstmy to exercise the forsOng powers, and rstlfra omy sect that fiayview may kwhtlly peribra to exnmisinf those powers by viftc horvot GACC fiether grams to Dayview the railed power of sgbstiastfat and revocation of another party, for tht purpose and only for the purpose of eadorstta or msispbq now or scm* 6Wrumcnap in GAWs man. and hereby radius awl confkrms all OW phi 01alml-le 4wa or Its, substioute or substitutes, shell lawfully do or auto to be done by sathoci y of olds power of anorney and the right: and power: grsaad hereby, low?$ t na-"" s, "Is A KO NA 8ayvim dull ln& miy, dcfcod and kid harmloss GACC atd its swoossors and ataijtas nae and opitast any atd all Josue, ww, *xpenows (6ded4 withow lim kaiiovy actual dtorwr' (ees), 4magm NaWltfej, demnds or claims of any kind %Uft or, rCkhme") "Ing am of t loo to, or In ownealoo with M tarry ut ),pteitaartl to We Litn3ttid Potwar or:Attatorpay, vA>itlt a>A rotitdas is talon by tgvkw (or Its twi5 IM4 or subsi)ttao Cidnt aaisly by view of the vnlaertkl vas of dds Umlod Pi wa of Apia tusy (aod not a a opals of a CWtn MOW to the underiyhtj lastt?omi, whh swpaat b whM 61s. Umkd Porter of Adornry has been sued), or (10 tiny aw or misntsc of this Lintiled. Power of Anora q Is any Mwor Or by any person not ettpreasiy wthoriud hereby. 1' Vlt CAIf:; W)TH=QF,• OACC bu.exocatied this LW W 6*er at Attorhigy this , day of GERMAN AMONCAN CAPI'T'AL CORFORATION Jan "Olo h rll r Wier. wtftm-. U. v NJ. Name: _ +)li ?I Yi111 Title: ACKNOWLEDGMENT Sattt of J?L ) v,? w. Oriflk ! l1aY.4t : !fn dic. 1p ba ton ?aa, the witdarniptod, ptxsorMy appowed !j.. 1. f t ,UP-TIO-Ox ' _ , perv"Ily kw" to me or 'Air vW tome on the be* of;MISTit wr evidttnca vldwl(,? WhW mums) Is(ew) auWaibted to the wiNa inoun as and admmkd *d to me that hWitdduy ttiteC" the ame In INWIR Akir twpacty(lul that by bWhorl theirstpnat"As) an tin insirumos, the i divkhwl(s)r or Ow yawn opon bodro(which the tndividuahs) amd, cumvied the itnowuatt. WORM LOW W YA" Nu iwwa7tifi/ le w ttm q=M.itlIOI.ONLWV w OOI? 346m u :J WCM Itr, ww,3,taeo,eSMMi. x, (1+ 11 C-) ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201102209 Recorded On 1/19/2011 At 8:44:57 AM k Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number - 80636 User ID - ES "Mortgagor - LEPERCQ CORP INCOME FUND L P *Mortgagee - LEXINGTON K MAIN L P 'Customer- CB ABSTRACT SERVICES LLC FEES STATE NRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $15.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $54.50 ¦ Total Pages - 7 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER O D DS • - Information denoted by an asterisk may change daring the verification process and may not be reflected on this page- IIIIIMBan EXHIBIT G PA dp:?#38-19-16ZI-OE?? aaI a -13 CB Title Group, LLC n?A??I????If?N 140 Mountain Avenue 000061 Suite 101 Sprin field NJ 07081 ASSUMPTION AGREEMENT This Assumption Agreement ("Agreement") is dated as of this 23th day of December, 2010 and to be Effective the 11`r day of January, 2011 (the "Effective Date"), by LEXINGTON KINGSTON MAIN L.P., a Delaware limited partnership ("Borrower"), LEPERCQ CORPORATE INCOME FUND L.P., a Delaware limited partnership ("Grantor" or "Current Guarantor"), LEXMAIN REALTY VENTURES LLC, a Delaware limited liability company ("Buyer"), SAMUEL KIRSCHMAUM and BENJAMIN RUBIN (collectively, 'New Guarantors') and Lexington K Main L.P., a Delaware limited partnership, as assignee of German American Capital Corporation, a Maryland corporation ("Noteholder"). RECITALS: A. JPMorgan Chase Bank N.A., a banking association chartered under the laws of the United States of America ("Original Lender"), made a loan to Borrower in the original principal amount of Three Million Five Hundred Fifty Thousand and No/100 Dollars ($3,550,000.00) (the "Loan"), under the terms and provisions set forth in the following loan documents, all of which are dated as of December 21, 2001 unless otherwise noted: Fixed Rate Note ("Note") in the original principal amount of the Loan made by Borrower and payable to Original Lender having a monthly payment amount of $26,884.13; 2. Fee and Leasehold Mortgage and Security Instrument (as assigned, as set forth below, "Security Instrument"), executed by Borrower and Grantor, for the benefit of Original Lender, which secures the Note and other obligations of Borrower and which was recorded on December 27, 2001, in Mortgage Book 1744, Page 178, in the Official Records of Cumberland County, Pennsylvania (the "Official Records"), the beneficiary's interest under the Security Instrument was assigned by assignments (i) recorded on March 28, 2003, in Book 695, Page 3955 in the OfEcial Records, (ii) recorded on December 29, 2209 as Instrument Number 200942696 and (iii) dated as of the date hereof and intended to be recorded in the Official Records immediately prior to the recordation of this Agreement. The land, improvements and other real property which are subject to the Security Instrument are hereinafter referred to as the "Property" as more particularly described on Exhibit A attached hereto and made a part hereof and the equipment, machinery and other personal property which are subject to the Security Instrument are hereinafter referred to as the "Collateral"; 3. Assignment of Leases and Rents executed by Borrower for the benefit of Original Lender, recorded on December 21, 2001, in Book 683, Paige 2033 in the Official Records; 4, Guaranty ("Original Guaranty") executed by Current Guarantor ("Guarantor") for the benefit of Original Lender; 5. Environmental Indemnity Agreement executed by Borrower for the benefit of Original Lender; 6. Cash Management Agreement executed by Borrower for the benefit of Original Lender; 7. Escrow Agreement for Reserves and Impounds executed by Borrower for the benefit of Original Lender, 8. Clearing Account Agreement by and among Borrower, Original Lender and Bank of America, N.A. (as successor-in-interest to Fleet Bank, N.A.); 9. Operations and Maintenance Agreement between Original Lender and Borrower; 10. Disclosure for Confession of Judgment executed by Borrower for the benefit of Original Lender, 11. UCC-1 Financing Statement filed with the Pennsylvania Secretary of State; and 12. UCC-1 Financing Statement filed with Cumberland County, Pennsylvania. The above documents and any other Loan Documents (as defined in the Security Instrument), including, in each case, any prior amendments thereto, together with this Agreement are hereinafter collectively defined as the "Loan Documents". All Loan Documents other than those listed as numbers 4, 5, 6, 8 10 are hereinafter collectively referred to as the "Assumed Loan Documents". B. The principal balance of the Note, accrued and unpaid interest on the Note and amount of reserves currently held by Lender are as set forth on Exhibit B attached hereto. C_ Borrower has sold and conveyed the Property and the Collateral to Buyer, or is about to sell and convey the Property and the Collateral to Buyer, and both parties desire to obtain from Noteholder a waiver of any right Noteholder may have under the Loan Documents to accelerate the Maturity Date of the Note by virtue of such conveyance. D_ Subject to the terms and conditions hereof, Noteholder is willing to waive any right of acceleration of the Maturity Date of the Note upon assumption by Buyer of all obligations of Borrower under the Loan Documents. NOW THEREFORE, FOR VALUABLE CONSIDERA'T'ION, including; without limitation, the mutual covenants and promises contained herein, the parties agree as follows: 1. Incorporation. The foregoing recitals are incorporated herein by this reference- Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Security Instrument or, if not defined in the Security Instrument, the meaning -2- ascribed thereto in the other Loan Documents. As used herein, "including" shall mean "including, without limitation". This Agreement shall be an additional Loan Document. 2. Conditions Precedent. The following are conditions precedent to Noteholder's obligations under this Agreement: a. The irrevocable commitment of Commonwealth Land Title Insurance Company ("Title Company), to issue an ALTA Loan Policy of Title Insurance in form and substance acceptable to Noteholder insuring Noteholder that the Security Instrument, as amended by this Agreement, constitutes a fast and prior lien upon the Property, subject only to those matters expressly approved by Noteholder in writing. Noteholder shall pay for all title charges and expenses in connection with the title policy issued to Noteholder. b. Receipt and approval by Noteholder of, (i) the executed original of this Agreement; and (ii) any other documents and agreements which are required pursuant to this Agreement, in form and content acceptable to Noteholder and the recordation of this Agreement in the Official Records, together with such other documents and agreements, if any, required pursuant to this Agreement or which Noteholder has requested to be recorded or filed; C. Filing and/or recording of new UCC-l Financing Statements which Buyer expressly authorizes Noteholder to file; d. Execution and delivery to Noteholder of (i) a Guaranty ("New Guaranty") by New Guarantor in favor of Noteholder in the form attached hereto as Exhibit C, pursuant to which New Guarantor irrevocably guarantees payment for certain matters under the Loan as more specifically set forth in the New Guaranty, (ii) an Environmental Indemnity Agreement ("New Environmental Indemnity"), executed by Buyer and New Guarantor in favor of Noteholder in the form attached hereto as Exhibit D pursuant to which Buyer and New Guarantor shall indemnify Noteholder with respect to certain environmental matters as more specifically set forth in the New Environmental Indemnity, (iii) Disclosure for Confession of Judgment ("New Diseloanre"), executed by Buyer in favor of Noteholder and in the form attached hereto as Exhibit E and (iv) a Cash Management Agreement (the "New Cash Management Agreement") executed by Buyer and Noteholder in the form attached hereto as Exhibit F pursuant to which Buyer shall direct that all rents and other revenue generated by the Property and Collateral shall be deposited in an account owned and controlled by Noteholder. The New Guaranty, New Environmental Indemnity, New Cash Management Agreement and New Disclosure are hereinafter referred to as the "New Loan Documents"). e. Delivery to Noteholder of such resolutions or certificates as Noteholder may require, in form and content acceptable to Noteholder, authorizing the assumption of the Loan and executed by the appropriate persons and/or entities on behalf of -3- Buyer and a certified copy of Buyer's organizational documents, including articles of organization and the operating agreement of each of Buyer and Buyer's members, with all amendments, modifications, supplements and restatements thereto, in form and substance acceptable to Noteholder and which satisfies the special purpose entity, banlauptcy remoteness, and similar requirements set forth in the Loan Documents; f. The representations and warranties contained herein are true and correct; g. Receipt by Noteholder of a copy of the applicable casualty insurance policy and comprehensive liability insurance policy with respect to the Property and related ACORD certificates, each in form and amount satisfactory to Noteholder, h. Receipt by Noteholder of an executed Form W-9 for Buyer, i. Receipt by Noteholder of a copy of the new property management agreement for the Property in form and substance, and with a manager, acceptable to Noteholder along with an executed assignment and subordination of management agreement acceptable to Noteholder; j, Receipt by Noteholder of a certificate from the Buyer and the New Guarantors certifying that the closing funds are being contributed as a capital contribution and are not secured, directly or indirectly, by an interest in the Buyer or in any collateral assigned to Noteholder under the Loan; k. Opinions with respect to Buyer and New Guarantor regarding due formation, valid existence, good standing, due authorization, due execution and enforceability of this Agreement and each of the other documents, instruments and agreements executed in connection herewith; and 1. Borrower's reimbursement of Noteholder's attorneys' fees in an amount not to exceed $10,000.00. The execution and delivery of this Agreement by Noteholder shall be deemed to confirm that each of the conditions set forth in this Section 2 (other than those set forth in paragraphs c, d, and g, above) have been satisfied or waived, subject to the terms of any post-closing agreement, NotehoIder's escrow instruction letter, or other agreemem. 3. Assumption. Buyer hereby assumes all duties, obligations, responsibilities and liabilities of Borrower under the Assumed Loan Documents and agrees to pay when due all sums due or to become due or owing under the Note, the Security Instrument and the other Loan Documents and shall hereafter faithfully perform all of Borrower's obligations under and be bound by all of the provisions of the Loan Documents. 'Me execution of this Agreement by Buyer shall be deemed its execution of the Note, the Security Instrument and the Assumed Loan Documents. -4- 4. Release of Borrower and Guarantor. Noteholder hereby releases (on and as of the Effective Date) (i) Borrower from liability under the Loan Documents and (ii) Current Guarantor from liability under the Original Guaranty- 5. Representations and Warranties. a. Assignment. Borrower and Buyer each hereby represents and warrants to Noteholder that as of the Effective Date, Borrower has irrevocably and unconditionally transferred and assigned to Buyer, and that Buyer has irrevocably and unconditionally assumed, all of Borrower's right, title and interest in and to: i. The Property and the Collateral; ii. The Assumed Loan Documents; iii. All reciprocal easement agreements, operating agreements, and declarations of conditions, covenants and restrictions related to the Property; and iv. All funds, if any, deposited in impound accounts held by or for the benefit of Noteholder pursuant to the terms of the Assumed Loan Documents and/or New Loan Documents. Buyer hereby represents and warrants to Noteholder that no consent to the transfer of the Property and the Collateral to Buyer is required under any agreement to which Borrower or Buyer is a party, including, without limitation, under any lease, operating agreement, mortgage or security instrument (other than the Assumed Loan Documents and/or New Loan Documents), or if such consent is required, that Buyer has obtained all such consents. Loan Documents. Buyer represents and warrants to Noteholder that Buyer has actual knowledge of all terms and conditions of the Assumed Loan Documents and New Loan Documents, and agrees that Noteholder has no obligation or duty to provide any information to Buyer regarding the terms and conditions of the Assumed Loan Documents. Buyer Ruther agrees that all representations, agreements and warranties in the Assumed Loan Documents regarding Borrower, its status, authority, financial condition and business shall apply to Buyer as well as to Borrower, as though Buyer were the borrower originally named in the Assumed Loan Documents. Buyer further understands and acknowledges that, except as expressly provided in a writing executed by Noteholder, Noteholder has not waived any right of Noteholder or obligation of Borrower or Buyer under the Assumed. Loan Documents and/or New Loan Documents and Noteholder has not agreed to any modification of any provision of any Assumed Loan Document, New Loan Document or to any extension of the Loan. C. Financial Statements. Buyer represents and warrants to Noteholder that the financial statements of Buyer, and of each member of Buyer and of each New Guarantor, if any, previously delivered by Borrower, Buyer or any of such parties -5- to Noteholder: (i) are materially complete and correct; (ii) present fairly the financial condition of each of such parties; and (iii) have been prepared in accordance with generally accepted accounting principles consistently applied or other accounting standards approved by Noteholder. Buyer finther represents and warrants to Noteholder that, since the date of such financial statements, there has been no material adverse change in the financial condition of any of such parties, nor have any assets or properties reflected on such financial statements been solct, transferred, assigned, mortgaged, pledged or encumbered except as previously disclosed in writing by Buyer to Noteholder and approved in writing by Noteholder. d. Reports. Buyer represents and warrants to Noteholder that it has delivered to Noteholder truc, correct and complete copies of all reports, documents, instruments and information prepared by Buyer or by third parties at Buyer's request or direction in connection with Buyer's acquisition of the Property and Collateral and assumption of the Loan. e. Principal Place of Business. Buyer represents and warrants that its state of formation or organization is Delaware, Buyer shall not change its name or State of formation or organization without providing thirty (36) days prior written notice to Noteholder. 6. Loan Document Modifications. Buyer and Noteholder hereby agree that all references to Exel, Inc., Exel Lease and Master Lease in the Assumed Loan Documents are omitted. 7. Note Modification. Buyer and Noteholder hereby agree to the following amendment to the Note- the Maturity Date (as such term is defined in the Note) of the Note shall be two (2) years from the date hereof ii. Article 7 is deleted in its entirety and substituted in its place is the following: "The principal balance of this Note may be prepaid without penalty or premium upon fifteen (15) days prior written notice to Noteholder." 8. Security Instrument Modifications. Buyer and Noteholder hereby agree to the following amendments to the Security Instrument: All references to the terms "Leasehold Mortgage", "Lepereq Corporate Income Fund" or "Lepercq Corporate Income Fund, L.P.", "Fee Owner" and "Grantor" are deleted. ii. All references to the phrase "Fee Owner's Estate" shad] he replaced with "Borrower's Estate". -6- iii. All references to "Fee Owner" shall be replaced with "Borrower". iv. Section 1(a) is deleted in its entirety and substituted in its place is the following: "Borrower's estate in and to the real property described in Exhibit A attached hereto (collectively, the "Land'D and any after acquired title of the Borrower in the real property described on Exhibit together with additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the development, ownership cr occupancy of such real property, and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument;" Section 3.7 is amended by adding the following new subparagraph (e): "Notwithstanding anything contained in this Section 3.7 to the contrary, any consent by Noteholder required for tenant improvements ("Tl Work") or work necessary to install telecommunications equipment on the roof of the Improvements ("Communications Work') shall not be unreasonably withheld or delayed. Borrower shall provide Noteholder with ten (10) days prior written notice of any such TI Work or Communications Wont together with copies of all applicable plans and specifications (the "Plans"). Provided all applicable Plans have been submitted to Noteholder, Noteholder shall either provide comments to the Plans or approve or disapprove of the Plans within such ten (10) day time period. If NotehoIder provides comments to the Plans, Borrower shall have ten (10) days to resubmit the Plans to Noteholder for its consent and Noteholder shall have an additional five (5) days review such revised Plans. This approval process shall be followed until such time as the Plans have been approved or disapproved by Noteholder. If Noteholder fails to respond to Borrower's request within either such ten (10) day or five (:5) day period after receipt of Borrower's notice and the Plans or revised Plans, as the case may be, then Landlord shall be deemed to have given its written approval with respect to such TI Work and/or Communications Work.,, vi. Section 52 is deleted in its entirety and substituted in its place is the following: "WARRANTY OF TITLE. Borrower represents and warrant that it has good and marketable fee title to the Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and that Borrower possesses an unencumbered fee estate in the Land and the Improvements and that it owns the Property free and clear of all liens, encumbrances and charges whatsoever except for those -7- exceptions shown in the title insurance policy insuring the lien of this Security Instrument (the "Permitted Exceptions"). Borrower shall, at its sole cost and expense, forever warrant, defend and preserve the title and the validity and priority of the lien of this Security Instrument and shall, at its sole cost and expense, forever warrant and defend the same to Lender against the claims of all persons whomsoever." vii. In Section 83, "Lepercq Corporate Income Fund, L.P." is deleted and "Samuel Kirschenbaum" and "Benjamin Rubin" are substituted in its place. viii. Section 83(aXiii) is deleted in its entirety and substituted in its place is the following: "any lease of the Property without Noteholder's prior written consent which consent shall not be unreasonably withheld or delayed provided that such leases contain prevailing market terms." ix. Section 9.1(p) is deleted. X. In Section 18.1, the words commencing with "leasehold estate, in the Property" and ending with "subsequent owner or owners of the" are deleted. xi. Article 20 is deleted. 9. Waiver of Acceleration. Subject to the terms and conditions of this Agreement, Noteholder hereby (i) consents to the sale, conveyance, assignment and transfer o: the Property and the Collateral from Borrower to Buyer as described herein, subject to the Security Instrument and the Assumed Loan Documents, and (ii) agrees that it shall not exercise its right to cause all sums secured by the Security Instrument to become immediately due and payable because of such We, conveyance, assignment and transfer of the Property and the Collateral from Borrower to Buyer; provided, however, Noteholder reserves its right under the terms of the Security Instrument or any other Assumed Loan Document and/or New Loan Document to accelerate all principal and interest in the event of any subsequent sale, transfer, encumbrance or other conveyance of the Property, the Collateral or any interest in Buyer, except as permitted by the Assumed Loan Documents and/or New Loan Documents. Notcholder confirms that, effective as of the execution of this Agreement, no Event of Default shall be deemed to exist under the Assumed Loan Documents. 10. Multiple Parties. If more than one person or entity has signed this Agreement es Buyer or Borrower, then all references in this Agreement to Buyer or Borrower shall mean each and all of the persons so signing, as applicable. The liability of all persons and entities signing shall be joint and several with all others similarly liable. 11. Confirmation of Security Interest Nothing contained herein shall affect or be construed to affect any lien, charge or encumbrance created by any Assumed Loan -8- Document and/or any New Loan Document or the priority of that lien, charge or encumbrance. All assignments and transfers by Borrower to Buyer are subject to any security interest(s) held by Noteholder. 1.2. Notices. All notices to be given to Buyer hereunder, and pursuant to the Loan Documents (in Buyer's capacity as "Borrower" or other capacities thereunder) shall be addressed as follows: Lexmain Realty Ventures LLC 1181 Sussex Road Teaneck, New Jersey 07666 Attention: Samuel Kirschenbaum Fax: (201) 836-5334 With a copy to: Scyfarth Shaw LLP 560 Mission Street San Francisco, California 94105 Attn: Lawrence J. Moss, Esq. Fax: (312)460-7636 All notices to be given to Noteholder hereunder, and pursuant to the Loan Documents shall be addressed as follows: Lexington Kingston Main LLC c% Lexington Realty Trust One Penn Plaza, Suite 4015 New York, New York 10119 Attn: Mr. Brendan Mullinix Fax: (212) 594-6600 With copies to: Lexington Realty Trust One Penn Plaza, Ste. 4015 New York, New York 10119-4015 Attention: Joseph Bonventre, Esq. Fax: (212) 594-6600 and Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. 805 Thud Avenue, l e Floor New York, New York 10022 Attn: Jonathan Eiseman, Esq. Fax:(212)355-4608 •9- 13. Integration: Interpretation. The Assumed Loan Documents, New Loan Documents and this Agreement, contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated herein and supersede all prior negotiations. The Assumed Loan Documents, New Loan Documents and this Agreement shall not be modified except by written instrument executed by Noteholder and Buyer. Any reference in any of the Assumed Loan Documents and/or New Loan Documents to the Property or the Collateral shall include all or any parts of the Property or the Collateral 14. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the heirs, successors and assigns of the parties but subject to all prohibitions of transfers contained in any Assumed Loan Document and/or New Loan Document. 15. Attorneys' Fees, Enforcement. If any attorney is engaged by Noteholder to enforce, construe or defend any provision of this Agreement, or as a consequence of any default under or breach of this Agreement, with or without the filing of any legal action or proceeding, Buyer shall pay to Noteholder, upon demand, the amount of all attorneys' fees and costs reasonably incurred by Noteholder in connection therewith, together with interest thereon from the date of such demand at the rate of interest applicable to the principal balance of the Note as specified therein. 16. Additional Terms and Provisions - Impounds. Buyer acknowledges and agrees that, as and to the extent provided in the Loan Documents and/or New Loan Documents, (i) Noteholder may, from time to time, re-evaluate the monthly payment amounts with respect to certain impounds and reserve accounts including, without limitation, the impounds for taxes and insurance, and (ii) that after the Effective Date, Noteholder intends to re-evaluate such impounds and/or accounts and, following written notice from Noteholder to Buyer, Buyer shall thereafter deliver to Noteholder the adjusted payments for such impounds and/or accounts. 17. Miscellaneous. This Agreement shall be governed and interpreted in accordance with the laws of the jurisdiction(s) specified in the Assumed Loan Documents and/or New Loan Documents. In any action brought or arising out of this Agreement, Borrower and Buyer, and general partners, members and joint venturers of them, hereby consent to the jurisdiction of any state or federal court having proper venue as specified in the Assumed Loan Documents and/or New Loan Documents and also consent to the service of process by any means authorized by the law of such jurisdiction(s). Except as expressly provided otherwise herein, all terms used herein shall have the meaning given to them in the Assumed Loan Documents and/or the New Loan Documents. Time is of the essence of each term of the Assumed Loan Documents and/or the New Loan Documents, including this Agreement If any provision of this Agreement or any of the Assumed Loan Documents and/or New Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed therefrom and the remaining parts shall remain in full force as though the invalid, illegal, or unenforceable portion had not been apart thereof. -10- 1$. Counterpart. This Agreement may be executed in any number of counterparts, each of which when executed and delivered will be deemed an original and all of which taken together will be deemed to be one and the same instrument. [SIGNATURES ON NEXT PAGE] -l- IN WITNESS WDEREOF, the parties hereto have caused this Agreement to be duly executed as of the date fast above written. "NOTEHOLDEW LEXINGTON K MAIN L.P_ By: LEXINGTON KINGSTON MAIN LLC, its general partner By: Lepercq Corporate Income Fund L.P., a Delaware limited partnership By: Lex GP-1 Trust, a Delaware statutory trust, its general partner By: Name: tree Title: Vice President `BORROWER" LEXINGTON KINGSTON MAIN LP., a Delaware limited partnership By: Lepercq Corporate Income Fund L.P., a Delaware limited partnership By: Lex GP-1 Trust, a Delaware statutory trust, its general partner By: Z-e Name: n Title: Ies? e ??a?*emre- uim hegwa"s-- (SIGNATURES CONTINUED ON NEXT PAGE) 12- "CURRENT GUARANTOR" LEPERCQ CORPORATE INCOW FUND L.P. By: Lox GP-1 Trust, its genera! partner By: Name: oseph S. $onventre Title: Vice President LBIETM» LMIAIN REALTY VENTURES LLC By: Name: Title: Authorized Signatory "NEW GUARANTOR" SAMUEL KMSCHENBAUM BENJAMIN RUBIN -13- STATE OFNEW YORK ss. Ca NWOFNEWYORK ) On I: ray 2011, bd = mr, a Notary P? is and for sand StEk pason* a p=cd o $ pmmaDybmutcrme(crpowdtomemtbcbesisofs y ev d =j io the pawn wbrm n8me is sabacn rd b the wt@ir, msk mat and admowle*d tD me that bdsbc e:oeatled the same in h4ba' mb3 zed cape, and that by hi?= 6gashm m the imtUmett & persoi, or the ff7tdy upmbdxEofwhrhthepmmadcd, cmtodthe m*umeciL WIlNFSSmybmdaodoTxidsmL #a3Z Notary inanAr SIB (SEAL) ASHLEY FILLWAAE a-'.• ,?.t a ; t e .?.: Notary PubCio, State of New York °.. Cj,, No: 01FIBMI92 7- •. S .: ,. ' Quagred in Kmp County STATE OF 1 v ) Carmis m Expires July 19, 2014 COUNTY OF N ) On 3a 2011, befum me; a Notary Pd& m and for said swr, p=onaliy *P=ed ,en4,,v, pman*b vmt+nme((rRuvedtamem1bclasisafsabsfxfty eve) t be the person wbase >?ne is s&embed b the wit k inOmr d and adnovvbW to Me that he/she aoentad the same m bigbm m*rvbrd mpmiiy, and thatby hisher sine an the i¢rsl mxA the p=z q cite entity exeaiitheinstnme? . ; t i.} •; . ??.;:. ,.:.,:.... 4QabebffOf'1'tmchthePa9mad4 WINESS mybaodmd nfficia1 seat. NamyPubkinaodfefsaid Shad ASHLEY FILLMORE Notary Public, State of New York SIAM OF ) No: 01FI6225192 9 n, ) 2014 Cmms mEp m Uy 1 COUNfYOF Fj .rte=_' On 7 6 2011, before roe; a Nobay Puhtic in. and frc said gm? Petsa OY appmtrd k T T -1 mk4k ,pmmoRykmmfD=(crMvedloroeoafebasisot'sdi%&txy cvim=) b!be the palm vfmw name is s k smlad b the widen mskuaed and admow b me Ibd be&re ew*.!,ibesamembA= a*cdmdmVcdy,mdthatbybb? *vh= mtbe isizumett thepasop, orthe?nity upmbdb fofwhichfbepcssonartod,©cemiodtheirOnmcat WIINFSSmyhmdsodofaalseal PubtiGinandfix State ? ° ???'`t ? wD ASHLEY FILLMORE ,?n???'".?s?.. ( ?) Notary Pu*.,, State of New York .'.:k:' No: 01F16225192 ^*., ...... n Quafitfed in tCmgs County .; y. -14- Cm ffWan Expires July 19, 2014 "CURRENT GUARANTOR' LEPERCQ CORPORATE INCOME FUND L.P. By: Lex GP-1 Trust, its general partner By: _ Name: Tidc: "BUYER„ LEXMAIN REALTY VENTURES LLC B Na led e: Authorized Signatory "NEW GUARANTOR" SAMUEL KIRSCHENBAUM z 7 I UBIN SPATE OF NEV YORK ) ) ss. COUNTY OFNEW YORK ) -ed On , 2Dl D, before me, D=nber, a Notary Public in and for said sate, ley app= permnany koaown to rte (ar pmved b me on dr basis ofsafi a ry evidence) to be the perm whose mm is wbqrnbed to the within m1nzmapt zrd admowledged to me that &she executed the sane m tdslier authoaized capacity, and that by ho t?er sigr>ahae on the imstiunen? die PC=; or die entity uponbehalfofwhichthe person acted, execxtad the iastnm it. WFINM myhandandofficial seal. NotaryPubk m" fmrsxd Stale (SEAT ) STMEOF J1_J-. A/015 ) COUNIYOF C06?- ) On a3 Jb before me, D=r$xr, a Notary Public in and for said state, ptsmdly appeased R 1h trl petsoarally !mown to me (or proved to me on the basis of y evid=) to be ft pc rson whose nm= is atrbmibed to the within irls1nnvIt and wknowkedged to me tfr d hede ex=ded the same in hiA w arthorizod capacity, and that by hiAxrsig&ne on the ur5trianert, the person, or the entity upon behatfofwhichfr personae aceaftd d e i VIFINESS my hand and official seal (z I inardlnrsaid State (SEAL) STAIEOF } JOLYNN 111. NIKON tiorW R=t1tA7E oP ttlMW Wrcaaasst Ewummat?M2 COtJk??fI?Y OF ) On before me, Deeernber; a Notary Public in and for said st *t personally appeared pemnalty known b me (or proved to me on the basis of saisfadory evidence) b be the person where: name is srbscxibed to the within it murnent and admowlaW to me that fr)?4r c=iDd the same in h Sher mdor wd capacity, and that by bis = signatim on the imstnanent, tha pe:SOn, or the attyupon bd-alfofwluchthepa onadcd,a=xiiedtheirrhu)ert WITNESSmyhandandof cialseal. Notary Public in and for said Stale (SS ) i "CURRENT GUARANTOR" LEPERCQ CORPORATE INCOME FUND L.P. By: Lex GP-1 Trust, its general partner By: Name: Title: "BUYER" LE REAL VENTURES LLC By: Name: s^ L, Title: Authorised Signatory "NEW UARAN!`OR" SAMUEL KIRSCHENBAUM BENJAMIN RUBIN STATE OFNEW YORK ) )ss MR,UYOFNEWYORK ) On #g 14,; 2DIgbermeme Dmm*aNolayPci&nandforsaidgsi;p=mUy*p='d SAMUEL JC,OmU,?03AuH pcmDOal bo%nb=(aTmvcdb=cntcbasisaf ay evuknm) b be Ibc Pmm vAim name is sch abed b The vddn k*ummt and admawJalgyd b me that bed tic =*cd dr stein biV=a hnr and mp cky, and tat bybiherdg itm onthe:b*mm Tho pea m or ibe a* uponbedx fafvvt a drpersona2AcmaAedtheu4nincit WIlNESS myband and afdal seal. Nof 'cin ThrsaidSta4e JEANNY TSOU MO*Y.; PUSLId-STATE Of NEW. TO ft No.. O I TS6120437 C4nalitded in New York Cet4. VJ.Commistion Expires Deco mb#04,1012 (SE) STATE OF N5Jy( eje. ) ()F 6 )ss On qpme m ddwtcyavidoao be%emm *dtho be~fae me, Deoembc; a Nuhy Pubiie in and sie0e, Ply t r M poesoio* p vmd b Date m the basis of tithe same is Stft Icd lic?itnan and adalt AWg9 d b nne that n? hi9?ri ecn4?eit>stc,me>>t;tbcpeescq arthe seat PEAL) OF ? ? ) YO ? ? ? 1 JEANNY TSOU NOTARY,PUSUd-STATE Of NEW YORK No" 01TS6120437 Qualified in New York County *.Commissipn Expires December 2012 ?8 , before me, Ll=cnix ; a Ndacy Pu6Sa ' fnr Said Slat; penseaoaIly appeaed k tl 6 i V=Maay lanwu (arpmrcd to me cafe bass of S city exndmce)to be The p v?ncsenamt isafimal d to the and admov d*nd b me the ha?neaaoa2bdThesamemhi9'? c?.y,a?i$?tby ' mTheeen?umn>l;tbepessogaefbe cn*y Wmbe3natfafvd]rhThepe The' WItNESSSmybmdaadadiic? ISML tom) JEANNY U NOTARY. PUBLIC-STATE 0 EW YORK No. O1TSl12D437 Qualified in NKw Yo(t Ceun Mh,CbR+rittuion>;ttpltq Qepn16H ?6. EXBTBTT A LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land with the buildings and improvements thereon erected situate in Silver Spring Township, Cumberland County, Pennsylvania, being bounded and described according to an ALTAIACSM Land Title Survey made by Hartman & Associates, Inc., Engineers & Surveyors, dated November 21, 2001 as follows, to wit: BEGINNING at a point on the South side of Carlisle Pike (Rt. #11); thence through Dauphin Drive South 23 degrees 27 minutes 57 seconds East the distance of 1051.06 feet to a point; thence along lands Dauphin Distribution Services Company South 66 degrees 06 minutes 13 seconds West the distance of 590.13 feet to a point; thence along the eastern line of lands now or late of Anderson H. Walters Trust North 23 degrees 53 minutes 47 seconds West the distance of 786.93 feet to a point; thence along now or late of Shaffer Trucking, Inc. North 74 degrees 33 minutes 56 seconds East the distance of 133.25 feet to a point; thence continuing along same North 66 degrees 32 minutes 03 seconds East the distance of 434.09 feet to a point on the Westerly right-of-way line of Dauphin Drive; thence along the said western right-of-way line Dauphin Drive North 23 degrees 27 minutes 57 seconds West the distance of 290.65 feet to a point on the Southern right-of-way line of Carlisle Pike; thence along the southern right-of-way line of Carlisle Pike North 73 degrees 05 minutes 21 seconds East the distance of 30.20 feet to a point, the place of beginning. BEING Lot No. 1-B for Dauphin Distribution Services Co. as recorded in Plan Book 44, Page 23. ALSO BEING Tract No. 2-A for Exel Logistics as recorded in Plan Book 63, Page 91. EXHW1T B A. As of January 10, 2011: 1 _ The principal balance outstanding under the Note is $3,002,617.00; 2. Accrued but unpaid interest on the Note is $6,489.00. 3. Reserves held by Lender: On-Going Replacement: $315,000.00 71 and Leasing Commission; $273,000.00 EXHIBTT C NEW GUARANTY GUARANTY =412f40, 1,2011 THIS GUARANTY ("Guaranty") is executed as of by SAMUEL KIRSCHENBAUM and BENJAMIN RUBIN, individuals (collectively referred to as "Guarantor"), for the benefit of LEXINGTON K MAIN L.P., a Delaware limited partnership ("Lender"). A. On December 27, 2001, JPMorgaa Chase Bank, N.A. ("Original Lender") extended to Lexington Kingston Main, L.P_, a Delaware limited partnership ("Original Borrower") a loan (the "Loan's in the principal amount of THREE MILLION FIVE HUNDRED FIF`I1' THOUSAND AND NO1100 DOLLARS ($3,550,000.00); and . B. LEXMAIN VENTURES LLC, a Delaware limited liability company (`Borrower"), is indebted to Lender (as assignee of the Loan Documents (as defined in the Note (as hereinafter defined)) with respect to the Loan pursuant to that certain Assumption Agreement by and among Borrower, Lender, Guarantors, Original Borrower and Lepereq Corporate Income Fund L.P. dated of even date herewith in which Borrower assumed all of the obligations of Original Borrower in connection with that certain Fixed Rate Note dated December 27, 2001 (as amended by the Assumption Agreement) payable to the order of Lender in the original principal amount of $3,550,000.00 (together with all renewals, modifications, increases and extensions thereof, the "Note"), which is secured by the liens and security interests created by that certain Mortgage and Security Agreement dated December 27, 2001, as amended by the terms of the Assumption Agreement (the "Security Instrument"), and further evidenced, secured or governed by the other Loan Documents (as defined in the Note); and C. Lender is not willing to accept Borrower's assumption of the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed Obligations (as hereinafter defined); and D, Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will directly benefit from Lender's making the Loan to Borrower. NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower thereunder, and to extend such additional credit as Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties do hereby agree as follows: ARTICLE I NATURE AND SCOPE OF GUARANTY Section 1.1 GUARANTY OF OBLIGATIONS. Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Lender (and its successors and assigns), jointly and severally, the payment and performance of the Guaranteed Obligations as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby absolutely, irrevocably and unconditionally covenants and agrees that it is liable, jointly and severally, for the Guaranteed Obligations as a primary obligor, and that each Guarantor shall fully perform, jointly and severally, each and every term and provision hereof. Section 1.2 DEFINITION OF GUARANTEED OBLIGATIONS. As used herein, the term "Guaranteed Obligations" shall (i) mean each of the obligations of Borrower under the Environmental Indemnity (as defined the Security Instrument) including without limitation the indemnification provisions contained therein, and (n) be deemed to include. and Guarantor shalt' also be liable for, and shall indemnity, defend and hold Lender harmless from and against any and all Losses (as hereinafter defined) incurred or suffered by Lender and arising out of or in connection with the matters listed below: Instrument); (a) the misapplication or misappropriation of Rents (as defined in the Security (b) the misapplication or misappropriation of insurance proceeds or condemnation awards; (c) Borrower's failure to return or to reimburse Lender for all Personal Property (as defined in the Security Instrument) taken from the Property (as defined in the Security Instrument) by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value; (d) any act of actual waste or arson by Borrower, any principal, affiliate, general partner or member thereof or by any lndemritor (as defined in the Security Instnment) or any Guarantor; (e) any fees or commissions paid by Borrower to any principal, affiliate, general partner or member of Borrower, any Indemnitor or any Guarantor in violation of the terms of this Guaranty, the Security Instrument or the other Loan Documents; or (f) Borrower's f0urc to comply with the provisions of Section H of the Security Instrument. In addition, in the event (i) of any fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, its affiliates. its agents or its employees or by any Guarantor or Indemnitor in connection with the Loan, (ii) of a breach or default under Sections 4.3 or 8.2 of the Security Instrument, or (iii) the Property or any part hereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, then the Guaranteed Obligations shall also include the unpaid balance of the Debt (as defined in the Security Instrument). For purposes of this Guaranty, the term "Losses" includes any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive damages, foreseeable and unforeseeable consequential damages, of whatever kind or nature (including but not limited to reasonable attomeys' fees and other costs of defense). Section 1.3 NATURE OF GUARANTY. This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance, is joint and several and is not a guaranty of collection. This Guaranty shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor's death (in which event this Guaranty shall be binding upon Guarantor's estate and Guarantor's legal representatives and heirs). The fact that at any time, or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to Guaranteed Obligations. This Guaranty may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note. Section 1.4 GUARANTEED OBLIGATIONS NOT REDUCED BY OFFSET. The Note, the Guaranteed Obligations, and the liabilities and obligations of Guarantor to Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower, or any other party, against Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise. Section 1.5 PAYMENT BY GUARANTOR If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at maturity or earlier by acceleration or otherwise. Guarantor shall , immediately upon demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsocvcr, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender's address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations, and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. Section 1.6 NO DUTY TO PURSUE OTHERS. It shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce this Guaranty against Guarantor, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other person. (ii) enforce Lender's rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Lender's rights against any other guarantors of the Guaranteed Obligations. (iv) join Borrower ar any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Lender shall not be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations. Section 1.7 WAIVERS. Guarantor agrees to the provisions of the Loan Documents, and hereby waives notice of (1) any loans or advances made by Lender to Borrower. (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note or of any other Loan Documents. (iv) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower's execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property, (v) the occurrence of any breach by Borrower or Event of Default (as defined in the Security Instrument), (vi) Lender's transfer or disposition of the Guaranteed Obligations, or any part thereof (vii) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Lender, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents. any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and the obligations hereby guaranteed. Section 1,8 PA YMENT OF EXPENSES. In the event that Guarantor should breach or fail to timely perform any provisions of this Guaranty. Guarantor shall immediately upon demand by Lender, pay Lender all costs and expenses (including court costs and reasonable attorneys' fees) incurred by Lender in the enforcement hereof or the preservation of Lender's rights hereunder. The covenant contained in this section shall survive the payment and performance of the Guaranteed Obligations. Section 1.9 EFFECT OF BANKRUPTCY. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor that Guarantor's obligations hereunder shall not be discharged except by Guarantor's performance of such obligations and then only to the extent of such performance. Section 1.10 DEFERMENT OF RIGHTS OF SUBROGATION, REIMBURSEMENT AND CONTRIBUTION. (a) Notwithstanding any payment or payments made by any Guarantor hereunder, no Guarantor will assert or exercise any right of Lender or of such Guarantor against Borrower to recover the amount of any.payment made by such Guarantor to Lender by way of subrogation, reimbursement, contribution, indemnity, or otherwise arising by contract or operation of law. and such Guarantor shall not have any right of recourse to or any claim against assets or property of Borrower, whether or not the obligations of Borrower have been satisfied, all of such rights being herein expressly waived by such Guarantor. Each Guarantor agrees not to seek contribution or indemnity or other recourse from any other guarantor. If any amount shall nevertheless be paid to a Guarantor by Borrower or another Guarantor prior to payment in full of the Obligations (hereinafter defined), such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied to the Obligations, whether matured or unmatured. The provisions of this paragraph shall survive the termination of this Guaranty, and any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law. (b) Notwithstanding the provisions of Section 110(a), each Guarantor shall have and be entitled to (1) all rights of subrogation otherwise provided by applicable law in respect of any payment it may make or be obligated to make under this Guaranty and (2) all claims it would have against any other Guarantor in the absence of Section 1.10(a) and to assert and enforce same, in each case on and after, but at no time prior to, the date (the "Subrogation Trigger Date") which is 91 days after the date on which all sums owed to Lender under the Loan Documents (the "Obligations') have been paid in full, if and only if (x) no Event of Default of the type described in Section 9.1(d) or Section 9.1(e) of the Security Instrument with respect to Borrower or any other Guarantor has existed at any time on and after the date of this Guaranty to and including the Subrogation Trigger Date and (y) the existence of each Guarantor's rights under this Section 1.10(b) would not make such Guarantor a creditor (as defined in the Bankruptcy Code, as such term is hereinafter defined) of Borrower or any other Guarantor in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or prior to the Subrogation Trigger Date. Section 1.11 BANKRUPTCY CODE WAIVER. It is the intention of the parties that the Guarantor shall not be deemed to be a "creditor" or "creditors" (as defined in Section 101 of the United States Bankruptcy Code (the "Bankruptcy Code"]) of Borrower, or any other guarantor, by reason of the existence of this Guaranty, in the event that Borrower or any other guarantor, becomes a debtor in any proceeding under the Bankruptcy Code, and in connection hereAlth, Guarantor hereby waives any such right as a "creditor" under the Bankruptcy Code. This waiver is given to induce Lender to make the Loan evidenced by the Note to Borrower. Alter the Loan is paid in full and there shall be no obligations or liabilities under this Guaranty outstanding, this waiver shall be deemed to be terminated. Section 1.12 "BORROWER " The term "Borrower" as used herein shall include any new or successor corporation, association, partnership (general or limited), joint venture, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gin or bequest of Borrower or any interest in Borrower. ARTICLE 2 EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING GUARANTOR'S OBLIGATIONS Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor's obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following: Section 2.1 MODIFICATIONS. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, Note, Loan Documents, or other document, instrument, contract or understanding between Borrower and Lender, or any other parties, pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action. Section 22 ADJUSTMI?NT. Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any Guarantor. Section 2.3 CONDITION OF BORROWER OR GUARANTOR The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other party at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders, partners or members of Borrower or Guarantor, or any reorganization of Borrower or Guarantor. Section 2.4 INVALIDITY OF GUARANTEED OBLIGATIONS. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including without limitation the fact that (i) the Guaranteed Obligations, or any part thereof exceed the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof, is ultra vires, (iii) the officers or representatives executing the Note or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury law's, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other person be found not liable on the Guaranteed Obligations or any part thereof for any reason. Section 2.5 RELEASE OF OBLIGORS. Any full or partial release of the liability of Borrower on the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other person or entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, aclmowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belies understanding or agreement that other parties will be liable to payor perform the Guaranteed Obligations, or that Lender will look to other parties to payor perform the Guaranteed Obligations, Section 2.6 OTHER COLLATERAL. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations. Section 2:7 RELEASE OF COLLATERAL. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including without limitation negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of all or any part of the Guaranteed Obligations. Section 2.8 CARE AND DILIGENCE. The failure of Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security, including but not limited to any neglect, delay., omission, failure or refusal of Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to foreclose, or. once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations. Section 2.9 UNENFORCEABILITY. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be. properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations. Section 2.10 MERGER. The reorganization, merger or consolidation of Borrower into or with any other corporation or entity. Section 2.11 PREFERENCE. Any payment by Borrower to Lender is held to constitute a preference under bankruptcy laws, or for any reason Lender is required to refund such payment or pay such amount to Borrower or someone else. Section 2.12 OTHER ACTIONS TAKEN OR OMITTED. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations. ARTICLE 3 REPRESENTATIONS AND WARRANTIES To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents and warrants to Lender as follows: Section 3.1 BENEFIT. Guarantor is the owner of a direct or indirect interest in Borrower, and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations. Section 3.2 FAMILIARITY AND RELIANCE. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations: provided, however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty. Section 3.3 NO REPRESENTATION BY LENDER. Neither Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty. Section 3.4 GUARANTOR'S FINANCIAL CONDITION. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will be, solvent, and has and will have assets which, fairly valued, exceed its obligations, liabilities (including contingent liabilities) and debts, and has and will have property and assets sufficient to satisfy and repay its obligations and liabilities. Section 3.5 LEGALITY. The execution, delivery and performance by Guarantor of this Guaranty and the consummation of the transactions contemplated hereunder do not, and will not, contravene or conflict with any taw, statute or regulation whatsoever to which Guarantor is subject or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or result in the breach of any indenture, mortgage, deed of trust, charge, lien, or any contract, agreement or other instrument to which Guarantor is a party or which may be applicable to Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is enforceable in accordance with its terns, except as limited by banlauptcy, insolvency or other laws of general application relating to the enforcement of creditors` rights. Section 3.6 SURVIVAL. All representations and warranties made by Guarantor herein shall survive the execution hereof Section 3.7 REVIEW OF DOCUM Dq-FS. Guarantor has examined the Note and all of the Loan Documents. Section 3.8 LITIGATION. Except as otherwise disclosed to Lender, there are no proceedings pending or, so far as Guarantor knows, threatened before any court or administrative agency which, if decided adversely to Guarantor, would materially adversely affect the financial condition of Guarantor or the authority of Guarantor to enter into, or the validity or enforceability of this Guaranty. Section 3.9 TAX RETURNS. Guarantor has filed all required federal, state and local tax returns and has paid all taxes as shown on such returns as they have become due. No claims have been assessed and are unpaid with respect to such taxes. ARTICLE 4 SUBORDINATION OF CERTAIN INDEBTEDNESS Section 4.1 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used herein, the term "Guarantor Claims" shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower thereon are direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the person or persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor's payment of all or a portion of the Guaranteed Obligations to the extent the provisions of Section 1.10 hereof are unenforceable. Any indebtedness of Borrower to Guarantor now or hereafter existing (including. but not limited to, any rights to subrogation Guarantor may have as a result of any payment by Guarantor under this Guaranty), together with any interest thereon, shall be, and such indebtedness is, hereby deferred, postponed and subordinated to the prior payment in full of the Debt. Until payment in full of the Debt (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections 101 et seq., and the regulations adopted and promulgated pursuant thereto (collectively, the "Bankruptcy Code") which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice. custom or ruling in cases under the Bankruptcy Code generally), Guarantor agrees not to accept any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under the Bankruptcy Code, including the right to vote on any plan of reorganization. Section 42 gLAiMS IN BANKR TCY. In the event of receivership, bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency proceedings involving Guarantor as debtor, Lender shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Lender. Sbould Lender receive, for application upon the Guaranteed Obligations, any such dividend or payment which is otherwise payable to Guarantor, and which, as between Borrower and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon payment to Lender in full of the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Lender to the extent that such payments to Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that portion of the Guaranteed Obligations which would have been unpaid if Lender had not received dividends or payments upon the Guarantor Claims. Section 4.3 PAYMENTS HELD IN TRUST. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty. Guarantor agrees to hold in trust for Lender an amount equal to the amount of all funds, payments, claims or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender. Section 4.4 LIENS SUBORDINATE. Guarantor agrees that any liens. security interests, judgment liens, charges or other encumbrances upon Borrower's assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower's assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Lender presently exist or are hereafter created or attach. Without the prior written consent of Lender, Guarantor shall not (i) exercise or enforce any creditors right it may have against Borrower, or (ii) foreclose. repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or joinder in, any liquidation, bankruptcy. rearrangement, debtor's relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interest, collateral rights, judgments or other encumbrances on assets of Borrower held by Guarantor. ARTICLE 5 FINANCIAL REPORTS (a) Guarantor shall keep adequate books and records of account in accordance with methods reasonably acceptable to Lender, consistently applied and furnish to Lender: (i) an annual balance sheet and income statement of Guarantor in the form required by Lender, prepared and certified by Guarantor, within ninety (90) days after the close of each fiscal year of Guarantor; (ii) copies of all federal tax returns tiled by Guarantor, within ninety (90) days after the tiling thereof, and (iii) such other financial statements as may, from time to time, be reasonably required by Lender. (b) Lender and its accountants shall have the right to examine the records, books, management and other papers of any Guarantor which reflect upon its financial condition, at the Property or at any office regularly maintained by any Guarantor where the books and records are located. Lender and its accountants shall have the right to make copies and extracts from the foregoing records and other papers. In addition, Lender and its accountants shall have the right to examine and audit the books and records of any Guarantor pertaining to the income, expenses and operation of the Property during 'reasonable business hours and upon forty-eight (48) hours prior notice) at any office of Guarantor where the books and records are located. ARTICLE 6 NUSCELLANEOUS Section 6.1 WAIVER No failure to exercise, and no delay in exercising, on the part of Lender, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Lender hereunder shall be in addition to all other rights provided by law, No modification or waiver of any provision of this Guaranty, nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend. beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand. Section 6.2 NOTICES. All notices or other written communications hereunder shall be deemed to have been properly given (i) upon delivery, if delivered in person or by facsimile transmission with receipt acknowledged, (ii) one (1) Business Day (hereinafter defined) after having been deposited for overnight delivery with any reputable overnight courier service, er (iii) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: Guarantor: SAMUEL KIRSCHE tBAUM 1181 Sussex Read. Teaneck, NJ 07666 Facsimile No_: 201-836-5334 Guarantor: BENJAMIN RUBIN 200 Fast 9e Street New York, New York 10128 Facsimile No.:212-736-6363 With a copy to: SEYFARTH SHAW LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603-5577 Attn: Joel D. Rubin, Esq. Fax: (312) 460-7636 Lender: LEXINGTON K MAIN L.P. c/o Lexington Realty Trust One Penn Plaza, Suite 4015 New York, New York 10119 ;• -- Attn: • Mr. Brendan Mullinix Fax: (212) 594-6600 With copies to: LEXINGTON REALTY TRUST One Penn Plaza, Ste. 4015 New York, New York 10119-4015 Attention: Joseph Bonventre, Esq. Fax: (212) 594-6600 and EISEMAN LEVINE LEHRHAUPT & KAKOYIANNIS, P.C. 805 Third Avenue New York, New York 10022 Attention: Jonathan Eiseman, Esq. Facsimilc No.: (212) 355-4608 or addressed as such party may from time to time designate by written notice to the other parties. For purposes of this Section 6.2, the term "Business Day" shall mean a day on which commercial banks are not authorized or required by law to close in New York. New York. Any party by notice to the other parties may designate additional or different addresses for subsequent notices or communications. Section 6.3 GOVERNING LAW: JURISDICTION. This Guaranty shall be governed by and construed in accordance with the laws of the State in which the real property encumbered by the Security instrument is located and the applicable laws of the united States of America. Guarantor hereby irrevocably submits to the jurisdiction of any court of competent jurisdiction located in the state in which the Property is located in connection with any proceeding out of or relating to this Guaranty. Section 6.4 INVALID PROVISIONS. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein. Section 6.5 AMENDMENTS. This Guaranty may be amended only by an instrument in writing executed by the party or an authorized representative of the party against whom such amendment is sought to be enforced. --- . - Section 6.6 PARTIES SOUND: ASSIGNMENT. This Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives; provided, however, that Guarantor may not, without the prior written consent of Lender, assign any of its rights, powers, duties or obligations hereunder. Section 6.7 HEADINGS. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty. Section 6.8 RECITALS. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein- Section 6.9 COUNTERPARTS. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature or acknowledgment of, or on behalf of, each party, or that the signature of all persons required to bind any party, or the acknowledgment of such party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages. Section 6.10 RIGHTS AND REMEDIES. If Guarantor becomes liable for any indebtedness owing by Borrower to Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any mariner impaired or affected hereby and the rights of Lender hereunder shall be cumulative of any and all other rights that Lender may ever have against Guarantor. The exercise by Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. Section 6.11 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENT'S, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER. Section 6.12 WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY. SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUAR_AN'TY, THE SECURITY INSTRUMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVMENCE OF THIS WAIVER BY GUARANTOR [Signature Page to Follow] EXECUTED as of the day and year first above written. GUARANTOR: SAMUEL KIRSCHENBAUM /lAMIN RUBIN EXECUTED as of the day and year first above written. GU OR SAMUEL KIRSCHENBAUM BENJAMIN RUBIN EDIT D NEW ENVIRONMENTAL INDEMNTIY ENVIRONMENTAL INDEMNITY AGREEMENT ENVI anu r DEMNITY AGREEMENT (the "Agreement") made as of the day of by LEX11AIIQ1 VENTURES LLC, a Delaware limited liability company, having an office at 1181 Sussex Road, Teaneck, New Jersey 07666 ("Indemnitor"), in favor of LEXINGTON K MAIN L.P., a Delaware limited partnership, c/o Lexington Realty Trust, One Penn Plaza, Suite 4015, New York, New York 10114 ("Indemnitee'?, and other Indemnified Parties (as hereinafter defined). RECITALS A. Indemnitor is the owner of that certain leasehold estate in and to real property more particularly described in -Exhibit A attached hereto (said real property, together with any real property hereafter encumbered by the lien of the Security Instrument (defined below), being herein collectively referred to as the "Land"; the Land, together with all structures, buildings and improvements now or hereafter located on the Land, being collectively referred to as the "Property'D; and B. On December 27, 2001, JPMorgan Chase Bank,' NA. ("Original Lender") extended to Lexington Kingston Main, L.P., a Delaware limited partnership ("Original Borrower") a loan (the "Loan") in the principal amount of THREE MILLION FIVE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($3,550,000.00); and C. Indemnitor is indebted to Lender (as assignee of the Loan Documents (as defined in the Note (as hereinaRcr•defined)) with respect to the Loan pursuant to that certain Assumption Agreement by and among Borrower, Lender, Samuel Kirschenbaum, Benjamin Rubin, Original Borrower and Lepereq Corporate Income Fund L.P. dated of even date herewith in which Indemnitor assumed all of the obligations of Original Borrower in connection with that certain Fixed Rate Note dated December 27, 2001 ( as amended by the Assumption Agreement) payable to the order of Lender in the original principal amount of $3,550,000.00 (together with all renewals, modifications, increases and extensions thereof, the "Note"), which is secured by the liens and security interests created by that certain Mortgage and Security Agreement dated December 27, 2001, as amended by the terms of the Assumption Agreement (the "Security Instrument'), and further evidenced, secured or governed by the other Loam Documents (as defined in the Note); and D. Indemnitee is unwilling to permit Indemnitor to assume the Loan unless Indemnitor agrees to provide the indemnification, representations, warranties, and covenants and other matters described in this Agreement for the benefit of Indemnified Parties. AGREEMENT NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which arc hereby acknowledged, and intending to be legally bound, Indemnitor hereby represents, warrants, covenants and agrees for the benefit of Indemnified Parties as follows: ARTICLE 1 DEF 14MONS Section 13 DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: "Environmental Law" means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances, relating to liability for or costs of Remediation or prevention of Releases of Hazardous Substances or relating to liability for or costs of other actual or future danger to human health or the environment affecting the Property. The term "Environmental Law" includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground Storage Tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substmces Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodeaticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term "Environmental Law" also includes; but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law: conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of the Property; requiring notification or disclosure of Releases of Hazardous Substances or other environmental condition of the Property to any governmental authority or other person or entity, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to nuisance, trespass or other causes of action related to the Property; and relating to wrongful death, personal injury, or property or other damage in connection with any physical condition or use of the Property. "Hazardous Substances" includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present or future Environmental Laws or that may have a negative impact on human health or the environment, including but not limited to petroleum and petroleum products, asbestos and asbestos-containing materials ("ACM"), polychlorinated biphenyls ("PCBs"), lead, lead-based paints, radon, radioactive materials, flammables and explosives. "Indemnified Parties" includes Indemnitee, any person or entity who is or will have been involved in originating the Loan, any person or entity who is or will have been involved in servicing the Loan, any person or entity in whose name the encumbrance created by the Security Instrument is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan (including but not limited to those who may acquire any interest in mortgage pass-through certificates or other securities evidencing a beneficial interest in the Loan offered in a rated or unrated public offering or private investment ("Securities"), as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other person or entity who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Property, whether during the term of the Loan or as part of or following foreclosure pursuant to the Loan) and including but not limited to any successors by merger. consolidation or acquisition of all or a substantial part of Indemnitee's assets and business. "Legal Action" means any claim, suit or proceeding, whether administrative or judicial in nature. "Losses" includes any claims, suits, liabilities (including but not limited to strict liabilities), administrative or judicial actions or proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, tines, penalties, charges, fees, expenses, costs of Remediation (whether or not performed voluntarily), costs of assessing damages or losses, judgments, awards, amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, attorneys' fees, engineers' fees, environmental consultants' fees, and investigation costs (including but not limited to costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings. "Release" with respect to any Hazardous Substance includes but is not limited to any release, deposit, discharge, emission, lealong, leaching, spuling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances. "Remediation" includes but is not limited to any response, remedial, removal, or corrective action; any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances. "Storage Tanks" includes any underground or aboveground storage tanks, whether filled, empty, or partially filled with any substance. Section 1.2 OTHER DEFINED TERMS. Any capitalized term utilized herein shall have the meaning as specified in the Security Instrument, unless such term is otherwise specifically defined herein. ARTICLE 2 ENVIRONMENTAL REPRESENTATIONS AND WARRAN'T'IES Indemnitor represents and warrants, based upon written report(s) resulting from the environmental assessment(s) of the Property delivered to Indemnitee (collectively referred to herein as the "Environmental Report") and upon Indemnitor's best knowledge, that: Section 2.1 HAZARDOUS SUBSTANCES. There are no Hazardous Substances or Storage Tanks in, on, above, or under the Property, except those that are either (i) Hazardous Substances of such types-and in such quantities as are customarily used or stored or generated for offsite disposal or otherwise present in or at properties of the relevant property type, and in compliance with all Environmental Laws and with permits issued pursuant thereto, or (ii) fully disclosed to and approved by Indemnitee in writing. Section 2.2 NO RELEASES. There are no past, present or threatened Releases of Hazardous Substances in, on, above, under or from the Property, except as described in the Environmental Report Section 2.3 NO MIGRATION. There is no threat of any Release of Hazardous Substances migrating to the Property, except as described in the Environmental Report. Section 2.4 NO VIOLATIONS. There is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property, except as described in the Environmental Report. Section 15 NO NOTICE. Indetnaitor does not know of, and neither IndemnltOr nor any tenant of the Property has received, any written or oral notice or other communication from any person or entity (including but not limited to a governmental entity) relating to Hazardous Substances or Remediation thereof, of possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing. Section 2.6 COMPLETE DISCLOSURE. Indcmnitor has truthfully and fully provided to Indcmnitee, in writing, any and all information relating to conditions in, on, above, under or from the Property that is known to Indemnitor and that is contained in files and records of Indemnitor, including but not limited to any reports relating to Hazardous Substances in. on, above, under or from the Property and/or to the environmental condition of the Property. Section 2.7 AUTHORIZATIONS. All notices, permits, licenses, registrations, or similar authorizations, if any, required to be obtained or tiled in connection with the ownership, ?-?-- operation, or use of the Property, including, without limitation, the existence of any Storage Tanks at the Property or the past or present gencration, treatment, storage, disposal, or release of a Hazardous Substance into the environment, have been duly obtained or tiled and have been duly renewed or maintained. Section 2.8 PROPERTY COMPLIANCE. The Property and the operations conducted thereon do not violate any applicable law, statute, ordinance, rule, regulation, order, or determination of any governmental authority or any restrictive covenant or deed restriction (recorded or otherwise), including without limitation all applicable zoning ordinances and building codes, flood disaster laws and Environmental Laws. Section 2.9 INDEMNITOR'S INVESTIGATION. Upon Indemnitor's best knowledge and except as set forth in the Environmental Report, no Hazardous Substances are or have been generated, treated, stored, used, disposed of or released on, under, from, or about the Property, except in compliance with applicable Environmental Laws. Section 2.10 OTHER PROPERTIES. Neither Indernnitor, nor, to the best knowledge of Indemnitor, any other person, including, but not limited to, any predecessor owner, tenant, licensee, occupant, user, or operator of all or any portion of the Property, has ever caused, permitted, authorized or suffered, and Indemniter will not cause, permit, authorize, or suffer, any Hazardous Substance to be placed, held, located, or disposed of, on, under or about any other real property, all or any portion of which is legally or beneficially owned (or any interest or estate therein which is owned) by Indemnitor in any jurisdiction now or hereafter having in effect a so-called superlien law or ordinance or any part thereof, the effect of which law or ordinance would be to create a lien on the Property to secure any obligation in connection with the superlien law of such other jurisdiction. Section 2.11 NO LITIGATION. Except as otherwise previously disclosed to Indemnitee in writing, there is no pending or threatened litigation, proceedings, or investigations before or by any administrative agency in which any person or entity alleges or is investigating any alleged presence, Release, threat of Release, placement on, under, from or about the Property, or the manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, under, from or about the Property, or the transportation to or from the Property, of any Hazardous Substance. Section 2.12 NO COMMUNICATIONS. There have been no communications or agreements with any governmental authority thereof or any private entity, including, but not limited to, any prior owners or operators of the Property, relating in any way to the presence, Release, threat of Release, placement on, under or about the Property, or the use, manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous Substance, except for communications made in the ordinary course of business in connection with permits, reports, and routine inspections issued, prepared or conducted by government agencies or authorities having jurisdiction over the Property. ARTICLE 3 ENVIRONMENTAL COVENANTS Indemniter covenants and agrees that Section 3.1 COMPLIANCE. All uses and operations on or of the Property, whether by Indemnitor or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto. Section 3.2 NO RELEASES. Indemnitor shall not permit or cause Releases of Hazardous Substances in, on, above, under or from the Property. Section 3.3 NO HAZARDOUS SUBSTANCES. There shall be no Hazardous Substances in, on, above or under the Property, except those that are either (i) Hazardous Substances of such types and in such quantities as are customarily used or stored or generated for offsite disposal or otherwise present in or at properties of the relevant property type. and in compliance with all Environmental Laws and with permits issued pursuant thereto, or (ii) fully disclosed to Indemnitcc in writing and approved by Indemnitee. Section 3.4 NO ENCUMBRANCES. Indemniter shall keep the Property free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Indemnitor or any other person or entity (the "Environmental Liens"). Section 3.5 INVESTIGATION, In addition to the reports required under Section 3.8 below, Indemnitor shall, at its We cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written requests of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereat: and Indemnitee and other Indemnified Parties shall be entitled to rely on such reports and other results thereof. So long as no Event of Default has occurred and Lender has no reason to believe that a Release has occurred, such site assessments or other investigations shall be required no more frequently than once in any twelve month period. Section 3.6 REMEDIATION. Indcmnitor shall, at its sole cost and expense, comply with all written requests of Indemnitee to (i) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, above, under or from the Property, and (ii) comply with any Environmental Law. Section 3.7 PROHIBITED ACTIVITIES. Indemnitor shall not do or allow any tenant or other user of the Property to do any act or thing that violates any Environmental Law. Section 3.8 MONITORING. If Indemnitee has a reasonable basis for believing any Hazardous Substance is present on the Property, Indemnitor shall upon request of Indemnitee establish and maintain, at Indemnitor's sole expense, a system to assure and monitor continued compliance with Environmental Laws, the existence of any Storage Tank on the Property and the presence of Hazardous Substances on the Property, by any and all owners or operators of the property, which system shall include at a minimum annual reviews of such compliance by employees or agents of Indemnitor who are familiar with the requirements of the Environmental Laws and, at the request of Indemnitee no more than once each year, a detailed review of such compliance of the environmental condition of the Property ("Environmental Compliance Report") in scope satisfactory to Indemnitee by an environmental consulting firm approved in advance by Indemnitee; provided however, that if any Environmental Compliance Report indicates a violation of any Environmental Law or a need for Remediation, such system shall include at the request of Indemnitee a detailed review ("Environmental Remediation Report") of the status of such violation by such environmental consultant. Indemnnitor shall furnish each Environmental Compliance Report or Environmental Remediation Report to the Indemnitee within sixty (60) days after Indemniee so requests, together with such additional information as Indemnitee may reasonably request. If Indcmuitor tails to contract for such an Environmental Compliance Report or Environmental Remediation Report after ten (10) days notice, or tails to provide either such reportwithin sixty (60) days, Indemnitee may order same, and Indemnitor grants to Indemnitec and its employees, agents, contractors and consultants access to the Property and a license (which is coupled with an interest and irrevocable while the Security Instrument is in effect) to perform inspections and tests, including (but not limited to) the taking of soil borings and air and groundwater samples. All costs of such reports, inspections and tests shall be an obligation of Indemnitor which Indemnitor promises to pay to Indemnfifiee pursuant to this Agreement. All such costs shall constitute a portion of the Debt, secured by the Security Instrument and the other Loan Documents. Section 3.9 NOTICE OF RELEASE. Indemnitor shall immediately notify Indemnitee in writing of (a) any presence or Releases or future Releases of Hazardous Substances in, on, above, under, from or migrating towards the Property; (b) any non-compliance with any Environmental Laws related in any way to the Property; (c) any actual or potential Environmental Lien; (d) any required or proposed Remediation of environmental conditions relating to the Property; and (e) any written or oral notice or other communication of which Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediatioa thereof, possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement. Any failure of Indemnitor to perform its obligations pursuant to this Agreement shall constitute bad faith waste with respect to the Property. ARTICLE d INDEMNIFIED PARTIES' RIGHTS; COOPERATION AND ACCESS Indemnified Parties and any other person or entity designated by Indemnified Parties (including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant) shall have the right but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (tire scope of which shall be determined in Indemnitce's sole and absohrte discretion) and talang samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing, all at the expense of Indemnitor. Indemnitor shall cooperate with and provide access to Indemnified Parties and any such person or entity designated by Indemnified Parties. '?? ARTICLE S INDEMNIFICATION Section 5.1 INDEMNITY. Indemnitor covenants and agrees at its sole cost and expense, to protect, defend, indemnify, release and hold harmless Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties (other than those arising solely from a state of facts that first came into existence after Indemniee acquired title to the Property through foreclosure or a deed in lieu thereof) and directly or indirectly arising out of or in any way relating to anyone or more of the following first arising from and after the date hereof. (a) any presence of any Hazardous Substances in, on, above, or under the Property; (b) any present or future Release of Hazardous Substances in, on, above, under or from the Property; (c) any activity by Indemnitor, any person or entity affiliated with Indemnitor, and any tenant or other user of the Property in connection with any actual, proposed or future use. treatment, storage, holding, existence; disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Property of any Hazardous Substances at any time located in, under, on or above the Property; (d) any activity by Indemnitor, any person or entity affiliated with Indemnitor, and any tenant or other user of the Property in connection with any actual or proposed Remediation of any Hazardous Substances at any time located in, under, on or above the Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (e) any present or future non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Property or operations thereon, including but not limited to any failure by Indemnitor, any person or entity affiliated with Indemnitor, and any tenant or other user of the Property to comply with any order of any governmental authority in connection with any Environmental Laws; (f) the imposition, recording or filing or the future imposition, recording or filing of any Environmental Lien encumbering the Property; (g) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (h) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations pursuant to this Agreement or Section 112 of the Security Instrument; and (i) any diminution in value of the Properly in any way connected with any occurrence or other matter referred to in this Agreement. ARTICLE 6 DUTY TO DEFEND AND ATTORNEYS AND OTHER FEES AND EXPENSES Upon written request by any lndmul fled Party, Indemnitor shall defend same (if requested by any Indemnified Party, in the name of the Indemnified Party) by attorneys and other. professionals approved by the Indemnified Parties. Notwithstanding the foregoing, any Indemnified Parties may, in their sole and absolute discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of Indemnified Parties, their attorneys shall control the resolution of any claim or proceeding. Upon demand, Indemmitor shall payor, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith. ARTICLE 7 ENFORCEMENT Indemnified Parties may enforce the obligations of Indemnitor without first resorting to or exhausting any security or collateral or without first having recourse to the Indemnitor, the Note, the Security Instrument, or any Other Loan Documents or any of the Property, through foreclosure proceedings or otherwise; provided, however. that nothing herein shall inhibit or prevent Indemnitee from suing on the Note, foreclosing, or exercising any power of sale under, the Security Instrument, or exercising any other rights and remedies thereunder. This Agreement and the Indemnitor's obligations hereunder, shall be deemed and construed as unsecured obligations. Further, this Agreement is not collateral or security for the debt of Indemnitor pursuant to the Loan, unless Indemnitee expressly elects in writing to make this Agreement additional collateral or security for the debt of Indemnitor pursuant to the Loan, which Indemnitee is entitled to do in its sole and absolute discretion. It is not necessary for an event of default to have occurred pursuant to the Security Instrument for Indemnified Parties to exercise their rights pursuant to this Agreement. Notwithstanding any provision of the Security Instrument, the Note or the Other Loan Documents, the obligations pursuant to this Agreement are exceptions to any non-recourse or exculpation provision of the Security Instrument, the Note or the Other Loan Documents. Indemnitor is fully and personalty liable for such obligations, and its liability is not limited to the original or amortized principal balance of the Loan or the value of the Property. ARTICLE 8 SURVIVAL The obligations and liabilities of Indemnitor under this Agreement shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Security Instrument. ARTICLE 9 JURY TRIAL WAIVER INDEMNTTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUN'T'ERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THE NOTE, THE NOTE, THE SECURITY INSTRUMENT, THIS AGREEMENT ORTHE OTHER LOAN. DOCUMENTS OR ANY ACTS OR OMISSIONS OF ANY INDEMNIFIED PARTIES IN CONNECTION THEREWITH. ARTICLE 10 SUBROGATION Indemnitor shall take any and all reasonable actions, including institution of Legal Action against third-parties, necessary or appropriate to obtain reimbursement, payment or compensation from such persons responsible for the presence of any Hazardous Substances at, in, on, under or near the Property or otherwise obligated by law to bear the cost. Indemnified Parties shall be and hereby are subrogated to all of Indemnitor's rights now or hereafter in such claims. ARTICLE 11 NOTICE OF LEGAL ACTIONS Each party hereto shall, within live (5) business days of receipt thereof, give written notice to the other party hereto of (i) any notice, advice or other communication from any governmental entity or any source whatsoever with respect to Hazardous Substances on, from or affecting the Property, and (ii) any Legal Action brought against such party or related to the Property, with respect to which Indemnitor may have liability under this Agreement. ARTICLE 12 MISCELLANEOUS PROVISIONS Section 12.1 NO THIRD PARTY BENEFICIARY. The terms of this Agreement are for the sole and exclusive protection and use of Indemnified Parties. No party shall be a third-party beneficiary hereunder, and no provision hereof shall operate or inure to the use and benefit of any such third party. It is agreed that those persons and entities included in the definition of Indemnified Parties arenot such excluded thud party beneficiaries. Section 12.2 NO ORAL CHANGE. This Agreement, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Indemnitor or any Indemnified Party, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. Section 12.3 HEADINGS, ETC, The headings and captions of various paragraphs of this Agreement are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof Section 12.4 SUCCESSORS AND ASSIGNS. The term Indemnitor shall include the heirs, executors, administrators, legal representatives, successors and assigns of Indemnitor, all of whom shall be bound by the provisions of this Agreement, provided that no obligation of Indemnitor may be assigned except with the written consent of Indemnitee. Each reference herein to Indemnitee shall be deemed to include its successors and assigns. This Agreement shall inure to the benefit of Indemnified Parties and their respective successors and assigns forever. Section 12.5 JOINT AND SEVERAL LIABILITY. If Indemnitor consists of more than one person or entity, the obligations and liabilities of each such person hereunder are joint and several. Section 12.6 RELEASE OF LIABILITY. Anyone or more parties liable upon or in respect of this Agreement may be released without affecting the liability of any party not so released. Section 12.7 RIGHTS CUMULATIVE. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies which Inderanitee has under the Note, the Security Instrument, or the Other Loan Documents or would otherwise have at law or in etluty. Section 12.8 INAPPLICABLE PROVISIONS. If any term, condition or covenant of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision. Section 12.9 GOVERNING LAW, JURISDICTION. This Agreement shall be governed by and construed in accordance with the applicable federal laws and laws of the state where the Property is located, without reference or giving effect to any choice of law doctrine. Indemnitor hereby irrevocably submits to the jurisdiction of any court of competent jurisdiction located in the state in which the Property is located in connection with any proceedings arising out of or relating to this Agreement. Section 12.10 NOTICES. All notices or other written communications hereunder shall be deemed to have been properly given (i) upon delivery, if delivered in person or by facsimile transmission with receipt acknowledged, (ii) one (1) Business Day (hereinafter defined) after having been deposited for overnight delivery with any reputable overnight courier service, or (iii) three (3) Business Days after having been deposited in any post office or snail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: Indemnitor: LEXMAIN REALTY VENTURES LLC 1181 Sussex Road Teaneck, New Jersey 07666 Attention: Samuel Kirschenbaum Fax: (201) 836-5334 With a copy to: SEYFARTH SHAW LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603-5577 Attn: Joel D. Rubin, Esq. Fax: (312)460-7636 Indemnitee: LEXINGTON K MAIN L.P. do Lexington Realty Trust One Penn Plaza, Suite 4015 New York, New York 10119 Attn: Mr. Brendan Mullinix With copies to: LEXINGTON REALTY TRUST One Penn Plaza, Ste. 4015 New York, New York 10119-4015 Attention: Joseph Bonventre, Esq. Fax: (212) 594-6600 and EISEMAN LEVINE LEHRHAUPT & KAKOYIANNIS, P.C. 805 Third Avenue New York, New York 10022 Attention: Jonathan Eiseman, Esq. Facsimile No.: (212) 3554608 or addressed as such party may from time to time designate by written notice to the other parties. For purposes of this Section 12.10, the term "Business Day" shall mean a day on which commercial banks are not authorized or required by law to close in New York. New Yorke. Any party by notice to the other parties may designate additional or different addresses for subsequent notices or communications. [Signature Page to Follow] EXHIBIT A (Legal description of land) ALL THAT CERTAIN piece or parcel of land with the buildings and improvements thereon erected situate in Silver Spring Township, Cumberland County, Pennsylvania, being bounded and described according to an ALTA/ACSM Land Title Survey made by Hartman & Associates, Inc., Engineers & Surveyors, dated November 21, 2001 revised December 6, 2001 as follows, to wit: BEGINNING at a railroad spike set, on the southern right-of-way line of the Carlisle Pike, Route No. 11, Eastbound at the Northwest comer of lands now or formerly of Shaffer Trucking, Inc., recorded in Record Book 101 page 897; thence through Dauphin Drive (50 feet right-of-way) South 23 degrees 27 minutes 57 seconds East the distance of 1051.06 feet to a point; thence along lands Dauphin Distribution Services Company South 66 degrees 06 minutes 13 seconds West the distance of 590.13 feet to a point; thence along the eastern line of lands now or late of Anderson H. Walters Trust North 23 degrees 53 minutes 47 seconds West the distance of 786.93 feet to a point; thence along now or late of Shaffer Trucking, Inc. North 74 degrees 33 minutes 56 seconds East the distance of 133.25 feet to a point; thence continuing along same North 66 degrees 32 minutes 03 seconds East the distance of 434.09 feet to a point on the Westerly right-of-way line of Dauphin Drive; thence along the said western right-of-way line Dauphin Drive North 23 degrees 27 minutes 57 seconds West the distance of 290.65 feet to a point on the Southern right-of-way line of Carlisle Pike, Route No. 11, Eastbound; thence along the southern right-of-way Be of Carlisle Pike, Route No. 11, Eastbound North 73 degrees 05 minutes 21 seconds East the distance of 30.20 feet to a point, the place of BEGINNING. BEING Lot No. 1-B for Dauphin Distribution Services Co. as recorded in Plan Book 44, Page 23. ALSO BEING Tract No. 2-A for Exel Logistics as recorded in Plan Book 63, Page 91. TOGETHER with the right of Grantor to use and enjoy in common with others the appurtenant easements set forth in Cumberland County Miscellaneous Book 266, Page 276 and Miscellaneous Book 266, Page 282. ALSO, TOGETHER with the easement and right-of-way granted by KC. Gabler, Inc. dated November 13, 1991 and recorded in Cumberland County Miscellaneous Book 407, Page 437. IN WITNESS WHEREOF, this Agreement has been executed by Indemnitor and is effective as of the day and year first above written. INDEMNITOR: LEXMAIN REALTY VENUTRES LLC By: Name: Title: uthorized Signatory EXHBIT E NEW DISCLOSURE FOR CONFESSION OF JUDGMENT C7' ZO I I Date: i=r 11 2%0 Disclosure for Confession of Judgment BORROWER: . Lexmain Realty Ventures LLC LENDER: LEXINGTON K MAIN L.P. The Borrower has executed, and/or is executing, on or about the date hereof, the following document(s) under which the Borrower is obligated to repay monies to Lender: I . Assumption Agreement A. The undersigned acknowledges and agrees that Borrower has assumed or will assume on the date hereof the Fixed Rate Note (the "Note") and the Mortgage and Security Agreement (the "Mortgage") set forth in the Assumption Agreement. The Mortgage contains provisions under which Lender may enter judgment by confession against the Borrower. Being fully aware of its rights to prior notice and a hearing on the validity of any judgment or other claims that may be asserted against it by Lender thereunder before judgment is entered, the Borrower hereby freely, knowingly and intelligently waives these rights and expressly agrees and consents to Lender's entering judgment against it by confession pursuant to the terms thereof. B. The undersigned also acknowledges and agrees that the Note and Mortgage -contain provisions under which Lender may, after entry of judgment and without either notice or a hearing, foreclose upon, attach, levy, take possession of or otherwise seize property of the Borrower in full or partial payment of the judgment. Being fully aware of its rights after judgment is entered (including the right to move to open or strike the judgment), the undersigned hereby freely, knowingly and intelligently waives its rights to notice and a hearing and expressly agrees and consents to Lender's taking such actions as may be permitted under applicable state and federal law without prior notice to the Borrower. C. The undersigned certifies that a representative of Lender specifically called the confession of judgment provisions in the above documents to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection with the Note and Mortgage. D. The undersigned hereby certifies: that its annual income exceeds $10;000; that all references to "the undersigned" above refer to all persons and entities signing below; and that the Borrower received a copy hercof at the time of signing. BORROWER: LEXMAIN REALTY VENTURES LLC By' - T 7Name i Authorized Signatory EDIT F NEW CASH MANAGEMENT AGREEMENT CASH MANAGEMENT AGREEMENT CASH MANAGEMENT AGREEMENT (this "Agreement"), is dated as.of January //?1' 2011, between LEXMAIN VENTURES LP, a Delaware limited partnership, having an office at 1181 Sussex Road, Teaneck, New Jersey 07666 ("Berrowee') and LF-YINGTON K MAIN L.P_, a Delaware limited liability company, do Lexington Realty Trust, One Penn Plaza, Suite 4019, New York, New York 10119 ("Lender). RECITALS: A_ On December 27, 2001, JPMorgan Chase Bank, NA_ ("Original Lender") extended to Lexington Kingston Main, LP., a Delaware limited partnership ("Original Borrower") a loan (the %Dan") in the principal amount of THREE MILLION FIVE HUNDRED FIFTY THOUSAND AND N01100 DOLLARS ($3,550,000.00), which Loan is evidenced by a Fixed Rate Note, dated as of December 27, 2001 (the "Note"), made by Original Borrower, as maker, to Original Lender, as payee, and secured by that certain Fee and Leasehold mortgage dated as of the date hereof, made by Original Borrower, as mortgagor, grantor or trustor, to Original Lender, as mortgagee or beneficiary covering the property (the "Property") more particularly described therein (the "Security Instrument"). B. Borrower is indebted to Lender (as assignee of the Loan Documents (as defined in the Note (as hereinafter defined)) with respect to the Loan pursuant to that certain Assumption Agreement by and among Borrower, Lender, Samuel Kirschenbaumm, Benjamin Rubin, Original Borrower and Lepereq Corporate Income Fund L.P. dated of even date herewith in which Borrower assumed all of the obligations of Original Borrower in connection with the Note. B. As a condition to making the Loan, Lender has required that all Rents (as herein defined) and other revenues from the Property be deposited directly into the Deposit Account (as herein defined). Amounts received in the Deposit Account will be allocated to the accounts established by Lender pursuant to the terms hereof to be applied as set forth herein. NOW, THEREFORE, in consideration of the covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: L DEFINITIONS As used herein, the following terms shall have the following definitions: "Accounts" shall mean, collectively, the Deposit Account, the Debt Service Account, the Tax and Insurance Funds Account, the Ongoing Replacement Funds Account, and the TI&LC Funds Account. "ACH System" shall mean the automated clearinghouse system. "Accrued Interest" as defined in the Note. "Affitistes" shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person. "Agreement" shall mean this Cash Management Agreement between Borrower and Lender, as amended, supplemented or otherwise modified from time to time. "Annual Budget" as defined in Sm;tioa 3.4. "Approved Budget" as defined in Section 3.4. "Assignment" shall mean the Assignment of Leases and Rents executed by Borrower of even date herewith. "Borrower" shall mean LEXMAIN VENTURES LP, together with its successors and permitted assigns. "Business Day" shall mean any day other than a Saturday, Sunday or day on which national banks in New York, New York are not open for business. "Collateral" as defined in Section 5.1. "Debt Service Account" as defined in Section 2.1W. "Deposit Account" as defined in Section 2.1(a). "Escrow Agreement" shall mean the Escrow Agreement for Reserves and Impounds executed by Borrower for the benefit of Lender of even date herewith. "Event of Defanlt" as defined in the Security Instrument. "Extraordinary Expenses shall mean any extraordinary operating expense or capital expense not set forth in the applicable Approved Budget or reserved for in the Oa-going Replacement Funds Account "Insurance Premiums" shall mean all premiums due under the insurance policies Borrower is required to maintain pursuant to the Security Instrument and the other Loan Documents. "Leases" shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of -le performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto. cta?--•-ma s.?ua?rv.?d s.?s?.,?m.n. ra.?cm.aauootnecwu?our,?u?..sa?ssy? "Leasing Commissions" as defined in the Escrow Agreement. "Lender" shall mean Lexington Kingston Main LLC, together with its successors and assigns. "Loan" as defined in the Recitals hereto. "Loan Documents" shall mean, collectively, this Agreement, the Security Instrument, the ]Note, the As*ignment and all other documents executed and/or delivered in connection with the Loan. "Monthly Debt Service Payment Amount" as defined in the Note. "Mote" as defined in the Recitals hereto. "Obligations" as defined in Section 5.1. "Ongoing Replacement Funds Account" as defined in Section 2.1(d). "Ongoing Replacements" as defined in the Escrow Agreement "Operating Expenses" shall mean, for any period, the operating expenses for the operation and maintenance of the Property as set forth in an Approved Budget to the extent such expenses are actually paid by Borrower and excluding expenses for which Borrower shall be reimbursed from, or which shall be paid for out of, any Funds (as defined in the Escrow Agreement). "Option Exercise Date" as defined in Section 2.5. "Person" shall mean any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing. "Property" as defined in the Security Instrument. "Rents" as defined in the Security Instrument "Security Instrument" as defined in the Recitals hereto. "Tax and Insurance Funds Account" as defined in Section 2.l(b). "Taxes" shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof. "Tenant" as defined in Section 2.aa). "Tenants" as defined in Section 22(a). c:--.-=.DredimiekAAWy 3.W c,s?ai.op.??¦..Arvbr.?a+mdiw iow?+?s.m.aAF-1(r?xslate "Tenant Direction Letter" as defined in Section 2.2(a). "Tenant Improvements" as defined in the Escrow Agreement. "Tenant Replacement Event" shall occur when, upon the vacancy of the Property or the expiration or non-renewal of any lease between Borrower and a Tenant, Borrower enters into leases of the property with Tenants for more than severity-five (750/0) percent in the aggregate of the square footage of the Property, provided that both the leases and Tenants are pre-approved by the Lender in accordance with Section 8.3(a)(iii) of the Security Instrument, and the Tenants are occupying the leased premises, paying rent and have provided estoppels in form and. substance reasonably satisfactory to Lender- "TI&LC Funds Account" as defined in Section 2.1(c). "Trigger Event" is defined in Section 2.5. "UCC" as defined in Section 5.1 a iii IL THE ACCOUNTS Section 2.1 Establishment of Accounts. Borrower acknowledges that Lender has established with a financial institution chosen by Lender in its discretion the fallowing Accounts; (a) A book entry subaccouat or account into which Tenant shall transfer by wire transfer or via the ACH System all monthly payments due under the Leases (the "Deposit Account"); (b) A book entry subaccount or account into which Borrower shall deposit, or cause to be deposited, the sums required to be deposited for payment of Taxes and Insurance Premiums pursuant to the Escrow Agreement (the "Tax and Insurance Funds Account"); (c) A book entry subaccount or account into which Borrower shall deposit, or cause to be deposited the sums required to be deposited for payment of Tenant Improvements and Leasing Commissions pursuant to the Escrow Agreement (the "TI&LC Funds Account"). (d) A book entry subaccount or account into which Borrower shall deposit, or cause to be deposited, the sums required to be deposited for payment of Ongoing Replacements pursuant to the Escrow Agreement (the "Ongoing Replacement Funds Account"); and (e) A book entry subaceount or account into which Borrower shall deposit, or cause to be deposited, the sums required to be deposited for payment of the monthly principal and interest payments due under the Note (the 'Debt Service Account"). c-o_.rs+a.vu, .=.ts. r .ri..IFS.anr?o?s??+sncwr??ou?n??.?.+,v-r(XW1Q-As The Accounts may, at Lender's discretion, be book entry subaeeounts in one or more commingled accounts maintained by Lender, or may be individual accounts set up by Lender. Lender may change the financial institution holding the Accounts from time to time upon written notice to Borrower. Section 2.2 Deposits into Deposit Account. Borrower represents, warrants and covenants that (a) Borrower shall cause all Rents and other income from the Property to be deposited directly into the Deposit Account. Without limitation of the foregoing, Borrower shall notify and advise each tenant of the Property (individually, a "Tenant" and collectively, the "Tenants") under each lease with respect to the Property (whether such lease is presently effective or executed after the date hereof) to send directly to the Deposit Account all payments of Rent or any other item payable to Borrower under such leases pursuant to an instruction letter in the form of Exhibit A attached hereto (a "Tenant Direction Letter"). (b) Commencing with the fast billing statement delivered after the date hereof and for each subsequent statement delivered., Borrower shall instruct all Persons that maintain open accounts with Borrower or with whom Borrower does business an an "accounts receivable" basis with respect to the Property to deliver all payments due under such accounts to the Deposit Account. Borrower shall not direct any such Person to make payments due under such accounts in any other manner. (c) If; notwithstanding the provisions of this Section 2.2, Borrower receives any Rents or other income from the Property, then (i) such amounts shall be deemed to be Collateral and shall be held in trust for the benefit, and as the property, of Lender, (ii) such amounts shall not be commingled with any other funds or property of Borrower, and (iii) Borrower shall deposit such amounts in the Deposit Account within one Business Day of receipt (d) Without the prior written consent of Lender, Borrower shall not (i) terminate amend, revoke or modify any Tenant Direction Letter in any manner whatsoever, or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Payment Direction Letter. (c) 'Mere are no other accounts maintained by Borrower or any other Person into which rcvenues from the ownership and operation of the Property are deposited. So long as the Note shall be outstanding, neither Borrower nor any other Person shall open any other such account for the deposit of Rent or revenues from the Property. Section 2.3 Account Name. The Accounts shall each be in the name of Lender, provided, however, that in the event Lender transfers or assigns the Loan, Lender may change the name of each account to the name of the transferee or assignee. In the event Lender retains a servicer to scrvice the Loan, Lender may change the name of each account to the name of servicer, as agent for Lender. C\ --a redS?gdASk,PSmfS?oep?7a?prs7latvrtFi7dComKQtlmNNi[WIIIOKs?l6u?pmptMop?(MW9).boc Section 2.4 Interest on Accounts. Unless otherwise required by applicable law or otherwise expressly provided to the contrary in the Loan Documents, no earnings or interest on the Accounts shall be payable to Borrower even if the Lender or its servicer is paid a fee and/or receives interest or other income in connection with the deposit or placement of fiords in the Accounts. Any interest or income from the Accounts payable to Lender or its servicer shall constitute additional servicing compensation. Borrower shall be responsible for payment of any federal, state or local income or other tax applicable to any interest earned by Borrower on the Accounts. Any interest earned by Borrower on the Accounts shall be reported under the federal tax identification number of Borrower. Section 25 jAgger Event The following shall be deemed to be a "Trigger Event" under this Agreement (a) the occurrence of an Event of Default under the Security Instrument; or (b) the oem=mce of defaults beyond notice and applicable grace periods under Leases for more than twenty-five percent (25%) in the aggregate of the square footage of the Property, or (c) the weighted average net worth of all Tenants (or the guarantors of such Tenants' obligations under their Leases) based upon the percentage of the square footage of each such Tenant's Lease in relation to the square footage of the Property is less than $25,000,000; or (d) if Tenants' Leases for more than twenty-five percent (25%) in the aggregate of the square footage of the Property are for a term ending prior to the maturity date of the Loan and. provide for one or more extension options to be exercised at least one year prior to the expiration of the teen (each such date for the exercise of an extension option an "Option Exercise Date"), and such Tenants have not so exercised their extension options on or before the Option Exercise Date; or (e) if Tenants' Leases for more than twenty-five percent (25%) in the aggregate of the square footage of the Property are for a term ending prior to the maturity date of the Loan, and such Leases do not provide for one or more extension options to be exercised at least one year prior to the expiration of the term, and such Tenants have not agreed with the Borrower to extend their Leases on or before one year before the expiration of such Leases; or (f) the vacancy of more than twenty-five percent (25%) in the aggregate of the square footage of the Property. The parties acknowledge that as of the date hereof a Trigger Event has occurred. III. DEPOSITS Section 3.1 Application of Deposits Prior to the Occurrence of a TriQSer Event Prior to the occurrence of a Trigger Event, on the first Business Day of each month, Lender shall withdraw all funds on deposit in the Deposit Account, pay the Monthly Debt Service Payment Amount and allocate and/or disburse the remAinmg funds to or at the direction of the Borrower. c?ne??s..es..qumytv?ds Ar• aWW" Section 3 .2 Application of Deposits From and After the Occurrence of Trigger Event (a) From and after the occurrence of a Trigger Event, on the first Business Day of each month Lender shall withdraw all funds on deposit in the Deposit Account and allocate and/or disburse such funds in the following order of priority: (i) First, funds sufficient to pay the Monthly Debt Service Payment Amount shall be deposited in the Debt Service Account; (ii) Second, funds sufficient to make the required monthly deposits to the Tax and Insurance Funds shall be deposited in the Tax and Insurance Funds Account; (iii) Third, funds sufficient to make the required monthly deposits to the Ongoing Replacement Funds shall be deposited in the Ongoing Replacement Funds Account; (iv) Fourth, to the payment of monthly Operating Expenses pursuant to the terms and conditions of the related Approved Budget to the extent Tenants are not continuing to pay the same pursuant to approved Leases; (v) Fifth, to the payment of Extraordinary Expenses approved by Lender, if any; (vi) Sixth, to the TI&LC Funds Account until the amount on deposit as TI & LC Funds equals at least $444,000, to be held and applied as TI&LC Funds; (vii) Seventh, to the Borrower or as the Borrower may direct. (b) Upon the occurrence of a Tenant Replacement Event, until another Trigger Event occurs, the application of fiords deposited into the Deposit account shall be controlled by Section 3.1 hereof. Section 33 Application of Deposits After an Event of Default. Upon the occurrence of a Trigger Event by reason of the occurrence of an Event of Default, Lender may withdraw all funds on deposit in the accounts and allocate and/or disburse such funds in such order of priority as Lender may determine, subject to Section 5.2 hereof. Section 3.4 Avvrvved Budget. Borrower shall submit to Lender for Lender's written approval an annual budget (an "Annual Budget") not later than (i) thirty (30) days after the occurrence of a Trigger Event or the occurrence and during the continuance of an Event of Default for the year in which the Trigger Event or Event of Default occurs and (ii) sixty (60) days prior to the commencement of each calendar year thereafter, in form satisfactory to Lender setting forth in reasonable detail budgeted monthly operating income and monthly operating capital and other expenses for the Property. Each Annual Budget shall contain, among other things, limitations on management fees, third party service fees and other expenses as Leader may reasonably determine. Each Annual Budget must be satisfactory to Leader in its sole CToa d Xm&*&U`{n?UW SW60W-*p yIWA=YWCA=tOubakWCWIDOttWKaysm AV®NO MWOAW discretion and each such Annual Budget approved by Lender in accordance with the terms hereof shall hereinafter be referred to as an "Approved Budget." Until such time as Lender approves a proposed Annual Budget, the most recently Approved Budget shall apply; provided, that such Approved Budget shall be adjusted to reflect actual increases in real estate taxes, insurauce premiums and utilities expenses. Section 3.5 Extraordinary ExpMes. In the event that Borrower must incur any Extraordinary Expense, then Borrower shall promptly deliver to Lender a reasonably detailed explanation of such proposed Extraordinary Expense for Leader's approval iV. WITHDRAWALS Section 4.1 Withdrawals From Tax and Insurance Funds and Debt Service Accounts. Tender shall have the right to withdraw amounts on deposit in the Tax and Insurance Funds Account to pay 's'axes at the Property on or before the date Taxes are due and payable and to pay Insurance Premiums on or before 'the date Insurance Premiums are due and payable. Lender shall have the right to withdraw amounts from the Debt Service Account to pay the Monthly Debt Service Payment Amount on the date the Monthly Debt Service Payment Amount is due and payable. Section 42 Requests for Withdrawals from the TI&LC Funds, Ong_ Replacement Funds Accounts. Lender shall disburse funds on deposit in the TI&LC Funds Account and the Ongoing Replacement Funds Account in accordance with and subject to satisfaction of each of the conditions of the Escrow Agreement. Section 43 Sole Dominion and Control. Borrower acknowledges and agrees that the Accounts are subject to the sole dominion, control and discretion of Lender, its authorized agents or designees, subject to the. terms hereof and the other Loan Documents. Borrower shall not have the right of withdrawal with respect to any Account. V. PLEDGE OF ACCOUNTS Section 5.1 Security for Obliptions. (a) To secure the full aad punctual payment and performance of all obligations of Borrower now or hereafter existing with respect to the Loan, whether for principal, interest, fees, expenses or otherwise, and all obligations of Borrower now or hereafter existing under the Security Instrument, the Note, this Agreement and all other Loan Documents (all such obligations, collectively, the "Obligations"), Borrower hereby grants to Lender a first priority continuing security interest in and to the following property of Borrower, whether now owned or existing or hereafter acquired or arising and regardless of where located (all of the same, collectively, the "Collateral"): (i) The Accounts and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Deposit Account or the Accounts from time to time including, without limitation, all deposits or wire transfcrs made to the Accounts; G`De®r?rs. $m„„AT.V...y I'•••" ••,_-_oieedawCa:nu?,a.eMr em•mce?lrbj.aa (ii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and Ciii) to the extent not covered by clauses (i) or (ii) above, all "proceeds" (as defined under the Uniform Commercial Code as in effect in the State or States in which the Accounts are located (the "UCC")) of any or all of the foregoing. (b) Lender shall have with respect to the Collateral, in addition to the rights and remedies herein set forth, all of the rights and remedies available to a secured party under the UCC, as if such rights and remedies were fully set forth herein. Section 5.2 Rights on Default Upon the occurrence of an Event of Default, without notice from Lender, (a) Bon•ower shall have no further right in respect of the Accounts, (b) Lender may exercise and enforce Lender's rights and remedies hereunder with respect to any Collateral, and (c) Lender may apply any funds in the Accounts to any Obligations in such order of priority as Lender may determine. Section 5.3 Further Assurances. Borrower agrees that at any time, and from time to time, at the expense of Borrower, Borrower will promptly execute and deliver all further instruments and documents, and take all feather action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purpoirted to be granted hereby or to enable Lender to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Section 5.4 Termination of A rg_eement This Agreement shall create a continuiuig security interest in the Collateral and shall remain in full force and effect until payment in frill of the Obligations. Upon payment and performance in full of the Obligations, this Agreement shall terminate and Borrower shall be entitled to the return, upon its request and at its expense, of such of the Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof, and Lender shall execute such instruments and documents as may be reasonably requested by Borrower to evidence such termination and the release of the lien hereof. VI. RIGHTS AND DUTIES OF LENDER Section 6.1 Reasonable . Beyond the exercise of reasonable care in the custody thereof or as otherwise expressly provided herein, Leader shall not have any duty as to any Collateral in its possession or control as agent therefor or bailee thereof or any income thereon or the preservation of rights against any person or otherwise with respect thereto. Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which Lender accords its own property, it being understood that lender shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in value theseo? by reason of the act or omission of Lender, its Affiliates, agents, employees or bailees, except to the extent that such loss or damage results from Lender's gross negligence or willful misconduct. aV-=-+.-ds. .ryre?6®epl7-P-Tbba ttero.dcamaiwYwutiaa[asx.ey?sAV dVMWiA. Section 6.2 Indemnity. Borrower shall indemnify and hold Lender, its employees and officers harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys' fees and disbursements) incurred by Lender in connection with the transactions contemplated hereby, except to the extent that such loss or damage results from Lender's gross negligence or willful misconduct. VII_ REMEDIES Section 7.1 Remedies. Upon the occurrence of an Event of Default, Lender may: (a) without notice to Borrower, except as required by law, and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Collateral against the Obligations or any part thereof; (b) in its sole discretion, at any time and from time to time, exercise any and all rights and remedies available to it under this Agreement, and/or as a secured party under the UCC; and (c) demand, collect, take possession of, receipt for, settle, compromise, adjust, sue for, foreclose or realize upon the Collateral (or any portion thereof) as Lender may determine in its sole discretion. Section 7.2 Waiver. Borrower hereby expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any notice of any kind in connection with this Agreement or the Collateral. Borrower acknowledges and agrees that ten (10) days' prior written notice of the time and place of any public sale of the Collateral or any other intended disposition thereof shall be reasonable and sufficient notice to Borrower within the meaning of the UCC. VI1I. MISCELLANEOUS Section 8.1 Transfers and Other Liens. Borrower agrees that it will not (i) sell or otherwise dispose of any of the Collateral or (ii) create or permit to exist any lien upon or with respect to all or any of the Collateral, except for the lien granted to Lender under this Agreement Section 8.2 Lender's Right to Perform Borrower's Obligations; No Liability of Lender. If Borrower fails to perform any of the covenants or obligations contained herein, and such failure shall continue for a period five (5) Business Days after Borrower's receipt of written notice thereof from Lender, Lender may itself perforrn, or cause performance of; such covenants or obligations, and the reasonable expenses of Lender incurred in connection therewith shall be payable by Borrower to Lender. Notwithstanding Lender's right to perform certain obligations of Borrower, it is acknowledged and agreed that Borrower retains control of the Property and operation thereof and notwithstanding anything contained herein or Lender's exercise of any of its rights or remedies hereunder, under the Loan Documents or otherwise at law or in equity, Lender shall not be deemed to be a mortgagee-in-possession nor shall Lender be subject to any liability with respect to the Property or otherwise based upon any claim of lender liability. C,z.® rc+ u s?r?cosre-c.d„sae„t?wrmuoaeci?ati..e-?a--.dcal"° Section 8.3 No Waiver. The rights and remedies provided in this Agreement and the other Loan Documents are cumulative and may be exercised independently or concurrently, and are not exclusive of any other right or remedy provided at law or in equity. No failure to exercise or delay by Lender in exercising any right or remedy hereunder or under the Loan Documents shall impair or prohibit the exercise of any such rights or remedies in the future or be deemed to constitute a waiver or limitation of any such right or remedy or acquiescence therein Every right and remedy granted to Lender hereunder or by law may be exercised by Lender at any time and from time to time, and as often as Lender may, deem it expedient. Any and all of Lender's rights with respect to the lien and security interest granted hereunder shall continue unimpaired, and Borrower shall be and remain obligated in accordance with the terms hereof, notwithstanding (a) any proceeding of Borrower under the Federal Bankruptcy Code or any bankruptcy, insolvency or reorganization laws or statutes or any state, (b) the release or substitution of Collateral at any time, or of any rights or interests therein or (c) any delay, extension of time, renewal, compromise or other indulgence granted by the Lender in the event of any default, with respect to the Collateral or otherwise hereunder. No delay or extension of time by Lender in exercising any power of sale, option or other right or remedy hereunder, and no notice or demand which may be given to or made upon Borrower by Lender, shq constitute a waiver thereof, or limit, impair or prejudice Lender's right, without notice or demand, to take any action against Borrower or to exercise any other power of sale, option or any other right or remedy. Section 8.4 Expenses. The Collateral shall secure, and Borrower shall pay to Lender and/or Lender's counsel on demand, from time to time, all costs and expenses (including, but not limited to, reasonable attorneys' fees and disbursements, and transfer, recording and filing fees, taxes and other charges) of, or incidental to, the creation or perfection of any lien or security interest granted or intended to be granted hereby, the custody, care, sale, transfer, administration, collection of or realization on the Collateral, or in any way relating to the enforcement, protection or preservation of the rights or remedies of Lender under this Agreement, the Security Instrument, the Note, or the other Loan Documents. Standard and customary fees and charges associated with the Accounts shall be included on a consolidated account analysis statement which Lender shall submit to Borrower for Borrower's payment. This statement shall set forth he fees and charges payable with respect to the Accounts, including, but not limited to reasonable fees and reasonable expenses incurred in connection with this Agreement- Lender shall be entitled to charge the Accounts for such fees and expenses as indicated by the analysis statement Section 8.5 Entire Agreement This Agreement constitutes the entire and final agreement between the parties with respect to the subject matter hereof and may not be changed, terminated or otherwise varied, except by a writing duly executed by the parties. Section 8.6 No Waiver. No waiver of any tern or condition of this Agreement, whether by delay, omission or otherwise, shall be effective unless in writing and signed by the party sought to be charged, and then such waiver shall be effective only in the specific instance and for the purpose for which given. Section 8.7 Successors and Assigo This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns. C,Doen .dSWiWMk,.Y7A-.Lf.ni?d2mgo?rTLMmFIa?Ce.. „WCWL1101110?i M-W-Av-P-4- Section 8.8 Notices. All notices, demands, requests, consents, approvals and other communications (any of the foregoing, a "Not'ice') required, permitted, or desired to be given hereunder shall be in writing sent by telefax or by registered or certified mail, postage prepaid, return receipt requested or delivered by hand or reputable overnight courier addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such parry may hereafter specify in accordance with the provisions of this Section 8.8. Any such Notice shall be deemed to have been received three (3). days after the date such Notice is mailed or on the date of sending by telefax or delivery by band or the next day if sent by an overnight commercial courier addressed to the parties as follows: If to Lender: LEXINGTON K MAIN L.P. cJo Lexington Realty Trust One Penn Plaza, Suite 4015 New York, New York 10119 Attn: Fax: (212) 594-6600 With copies to: LEXINGTON REALTY TRUST One Penn Plaza, Ste. 4015 New York, New York 10119-4015 Attention: Joseph Bonventre, Esq. Fax: (212) 594-6600 and EISEMAN LEVINE LEHRHAUPT & KAKOYIANNIS, P.C. 805 Tbird Avenue New York, New York 10022 Attention: Jonathan Eiseman, Esq. Facsimile No.: (212) 35511608 If to Borrower: LEXMAIN REALTY VENTURES, L.P. 1181 Sussex Road Teaneck, New Jersey 07666 Attention: Samuel Kirschenbai m Fax: (201) 836-5334 With a copy to: SEYFARTH $HAW LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603-5577 Attn: Joel D. Rubin, Esq. Fax: C1Dmmem xd Sa bVMAWfflUW 50*0AT.WW"{fvr[Fi?CaYed6lm?iN7C?Y131vMKlil Aural M**).loo Section 8.9 Cautious. All captions in this Agreement are included herein for convenience of reference only and shall not constitute part of this Agreement for any other purpose- Section 8.10 Governing Law. This Agreement shall be governed by and construed and enforced in all respects in accordance with the laws of the State where the Property is located without regard to conflicts of law principles of such State. Section 8.11 Cotmtecparts. This Agreement may be executed in any number of counterparts. +S.&V%AJigPL.-i SruyOr-F-ff lu-+ar§drm CWOOAWKW uoMCOhMM-...s AF• 04EWC)-j- IN WrINESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BORROWER: LEXMAIN REALTY VENUTRES, LP By: Lexmain Realty Ventures GP LLC, its general partner c By: Name: Title LENDER: LEXINGTON K MAIN L.P. By: LEXINGTON KINGSTON MAIN LLC, its general partner By: Lepercq Corporate Income Fund L.P., a Delaware limited partnership By: Lex GP-1 Trust, a Delaware statutory trust, its general partner By:_ Name: Title: IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BORROWER LEXMAIN REALTY VFNVTRES, LF By: I exmain Realty Ventures GP LLC, its general partner By: _ Name: Title: LENDER: LEXINGTON K MAIN L.P. By: LEXINGTON KINGSTON MAIN LLC, its general partner By: Lepercq Corporate Income Fund LY., a Delaware limited partnorship By: Lex GP-1 Trust, a Delaware statutory trust, its general partner By: Name: --3e . M $eaveatre Title: Ir. 11 --- :A-* [_w ?m od s.a m?MllrytVnol sad.vl .Raines r,.. cs?r.a ama+w[wu?arrr..1 Msgmd Asp RMW6}A-- EXIT A Form of Tenant Direction Letter [BORROWER LETTERHEAD] 20_ [Tenants under Leases] Re: Lease dated between , as Landlord, and as Tenant, concerning premises known as Gentlemen: This letter shalt constitute notice to you that the undersigned has granted a security interest in the captioned lease and all rents, additional rent and all other monetary. obligations to landlord thereunder (collectively, "Rent") in favor of Lexington Kingston Main LLC as lender ("Lender"), to secure certain of the undersigned's obligations to Lender. The undersigned hereby irrevocably instructs and authorizes you to disregard any and all previous notices sent to you in connection with Rent and hereafter to deliver all Rent to the following address: [Bank's Address) Account No. Attention: ABA# The instructions set forth herein are irrevocable and are not subject to modification in any manner, except that Lender, or any successor lender so identified by Lender, may by written notice to you rescind the instructions contained herein. Sincerely, LEXMAIN REALTY VENOTRES, LP By: L=main Realty Ventures GP LLC, its" general partner By: _ Name: Title: C P-.0 -d sui?m S"MAT- w" la m Fua?c?arb&+gZwu? 3e 16-w-AV-M d 0M*C)A- t?3bic A ACKNOWLEDGMENT AND AGREEMENT The undersigned acknowledges notice of the security interest of Lender and hereby confirms that the undersigned has received no notice of any other pledge or assignment of the Kent and will honor the above instructions. [Tenant] .. By: _ Name: Its: Dated as of , 20 a .W SdrydA. 1.fFL. W SmmpV.opwry ken+dF31L`mptOdloot?Wl:MLllOGfiCa?h Mmpuo[ As-" 0&WON ROBERT P. ZIEGLER F RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-5370 Instrument Number - 201102212 Recorded On 1/19/2011 At 8:45:00 AM * Instrument Type - AGREEMENT Invoice Number - 80636 User ID - ES * Grantor LEXMAIN REALTY VENTURES LLC * Grantee - LEXMAIN REALTY VENTURES LLC * Customer - CB ABSTRACT SERVICES LLC *FEES STATE WRIT TAX $0.50 RECORDING FEES - $149.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $165.00 * Total Pages - 74 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER O D EDS fao • - Information denoted by as asterisk may change daring the verification procen and may not be reflected on this page. iisi?misiiA EXHIBIT H C` UCC FINANCING STATEMENT CB Title Group, LLC FOLLOW INSTRUCTIONS (frontandback) CAREFULLY 140 Mountain Avenue A. NAME AND PHONE OF CONTACT AT FILER [optiotmll suite 101 F ngfield, NJ 07081 H. SEND ACKNOWLEDGEMENT TO: (Name w4 Addross) S ri 7'1 69 A - tbbq) Eise KC pt & Kakoyiannis, P.C. 805 Third loor 1121.0 ego New York022 Attn: JonEsq. File Number: 2011012101647 Date Filed: 0112012011 08:00 AM Carol Aichele Acting Secretary of the Commonwealth Commonwealth of Pennsylvania UCC1 Initial Filing 5 Page(s) 111111111111111 IN 11111111111111111111 T1102041236 1 e ORGANIZATION'S NAME 11 o .. 0-Itt, 11-+%irma I T f-' Ib.INDIV[" TAL'SLASTNAME FIRST NAME MIDDLE NAME SUFFIX Ic. MAILING ADDRESS 181 Sussex Road CITY _ Teaneck STATE POSTAL CODE NJ 07666 COUNTRY USA SEE IN STRUCTIONS I d ADD'LINFORE Ic.TYPE OFORGANIZZATION ItJURISD[CTIONOFORGANIZATION I¢. ORGANIZATIONAL 1D8,ifan), . ORGANIZATION DEBTOR Limited Liability Company Delaware ? NONE 2. ADDITIONAL DEBTOR'S EXAL: 2. ORGANIZATION'S NAME OR - Insets - w rn SUFFIX 2c. MAT[ ING ADDRESS CITY STATE k POSTAL CODE COUNTRY USA 24L SEE INSTRUCTIONS ADD'L INFO RE 2e. TYPE OF ORGANIZATION 211 JURISDICTION OF ORGANIZATION 2g. ORGANIZATIONAL IDS, if any ORGANIZATION ? NONE DEBTOR 3. SECURED PARTY'S NAME (or NAME ofTOTAL ASSIGNEE of ASSIGNOR SIP) - insert only ogN secured patty name (3a or 3b)_ _ 3a. ORGANIZATION'S NAME i CvT?Tl?Tl11T Y ld A TWT 1 D OR 3b.IND1VIDUAL'S IASTNAME FIRSTNAME MIDDLE NAME SUFFIX 3c. MAILING ADDRESS c/o Lexington Realty Trust, One Pen Plaza, Suite 4015 CITY New York STATE NY POSTAL CODE 10119 COUNTRY USA 4. This FINANCING STATEMENT covers the following collateraL SEE SCHEDULE "A " ATTACHED HERETO 5. ALTERNATIVE DESIGNATION [ifapplicable]: 0 LESSEFILESSOR 0 CONSIGNEElCONSIGNOR 0 BAILEWBAILOR 0 SELLER/BUYER 0 AG. LIEN 0 NON-UCC FILING 6' This FINANC fNU STATEMENT is to be filed [for record] (err woorded) in 7. Check to REQUEST SEARCH REPORTW as Delta(s) O a the REAL ESTATE RECORDS. Attach Addendum Dfapplbablel [ADDITIONAL FBE] [upriamil All Detaata Debkw 1 Dabtot 2 6. OPTIONAL FILER REFERENCE DATA FILE WITH SECRETARY OF STATE, COMMONWEALTH OF PENNSYLVANIA FILING OFFICE COPY - UCC FINANCING STATEMENT (FORM UCCI) (REV. 05122/02) UCC FINANCING STATEMENT ADDENDUM FOLLOW INSTRUCTIONS (front and back) CAREFULLY 9. NAME OF FIRST DEBTOR Isla OR 1b) ON RELATED FINANCING STATEMENT I 9a. ORGANIZATION'S NAME OR 9b, INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME 10. MISCELLANEOUS 11, ADDITION AL DEBTOR'S EXACT FULL LEGAL NAME - insert only debtor name I I a or 1 tb - do not abbreviate or combine tames: ]Is.ORGANr ION'S NAME OR l lb, INDIVIDUAL'S LAST NAME FIRSTNAME MIDDLE NAME SUFFIX I Ic. MAILING ADDRESS CITY STATE --FP-OSTAL CODE COUNTRY I Id. SEE INST&LK7MNS I ADD'L INFO RE l1& TYPE OF VKUAnru+ktUn ORGANIZATION D NONE 12. ?? i1 I' OR S LAST '$ NAME- 13. This FINANCING STATEMENT covets collateral, or is filed as a o fixture filing. 14. Description of real estate: 34 East Main Street New Kingstown, PA County: Cumberland Debtor dons not have a record interest): to be cut or O as extracted estate nam (12 or I FIRST NAME MIDDLE 1(r 17. Cbeck g* if applicable and check 2W one box- Debwr is a ? Trust or ? Tkustee acting with respect m pmperty held in hurt or ? Decedent's Galata I & Cbeck g& if applicable and check 2aly ono box 11 Debtor i9 a TRANSMrrTING UTILITY ? Filed in connection with a Manufactured-Homo Transaction - effective 30 years ? Filed in connection with a Public-Finance Transaction - effective 30 years - UCC FINANCING STATEMENT ADDENDUM (FORM UCCIAd) (REV. 05R2/02) SCHEDULE A Secured Party: LEXINGTON K MAIN L.P. EXHIBIT "B" to UCC Financing Statement All of Debtor's estate, right, title and interest in, to and under the following described property whether now owned or hereinafter acquired by Debtor (collectively, the "Property"): 1. L&W, The real property described in Exhibit A attached hereto and made a part hereof (collectively, the "Land"), together with additional lands, estates and development rights hereafter acquired by Debtor for use in connection with the development, ownership or occupancy of such real property, and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of that certain Leasehold Mortgage and Security Agreement executed in connection herewith (the "Security Instroment'?; 2. JMprovementa. The buildings, structures, fixtures, additions, accessions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the "Improvements"); 3. Easements. All casements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Debtor of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto; 4. Fixtures and Personal ProR=. All machinery, equipment, goods, inventory, consumer goods, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature whatsoever owned by Debtor, or in which Debtor has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future use, maintenance, enjoyment, operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Debtor, or in which Debtor has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements, and the right, title and interest of Debtor in and to any of the Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Property is located (the "Uniform Commercial Code"), superior in lien to the lien of the Security Instrument and all proceeds and products of the above; 5. Leases and-Rc=. All leases and other agreements affecting the use, enjoyment or occupancy of the Land and the Improvements heretofore or hereafter entered into, whether before or after the filing by or against Debtor of any petition for relief under I 1 U.S.C. § 10 1 et seg ., as the same may be amended from time to time (the "Bankruptcy Code") (individually, a "Lease"; collectively, the "Leases") and all right, title and interest of Debtor, its successors and assigns therein and thereunder, including, without limitation, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents (including all tenant security and other deposits), additional rents, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements whether paid or accruing before or after the filing by or against Debtor of any petition for relief under the Bankruptcy Code (collectively the "Rents") and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt; 6. Conde=ign A ards• All awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property; 7. Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property; 8. Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction; 9. Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims; 10. Ri s. The right, in the name and on behalf of Debtor, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Secured Party in the Property; H. Agreements. All agreements, contracts (including purchase, sale, option, right of first refusal and other contracts pertaining to the Property), certificates, instruments, franchises, permits, licenses, approvals, consents, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Property (including any Improvements or respecting any business or activity conducted on the Land and any part thereof) and all right, title and interest of Debtor therein and thereunder, including, without limitation, the right, upon the happening of any default hereunder, to receive and collect any sums payable to Debtor thereunder; 1-). Trademarks. All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; 13. Accounts. All accounts, accounts receivable, escrows (including, without limitation, all escrows, deposits, reserves and impounds established pursuant to that certain Escrow Agreement for Reserves and Impounds of even date herewith between Debtor and Secured Party), documents, instruments, chattel paper, claims, reserves (including deposits) representations, warranties and general intangibles, as one or more of the foregoing terms may be defined in the Uniform Commercial Code, and all contract rights, franchises, books, records, plans, specifications, permits, licenses (to the extent assignable), approvals, actions, choses, claims, suits, proofs of claim in bankruptcy and causes of action which now or hereafter relate to, are derived from or are used in connection with the Property, or the use, operation, maintenance, occupancy or enjoyment thereof or the conduct of any business or activities thereon; and 14. Other Rights. Any and all other rights of Debtor in and to the Property and any accessions, renewals, replacements and substitutions of all or any portion of the Property and all proceeds derived from the sale, transfer, assignment or financing of the Property or any portion thereof. EXHIBIT I Lexington K Main L.P. c/o Lexington Realty Trust One Penn Plaza, Suite 4015 New York, New York 10119 March 13, 2012 Via Federal Express and Facsimile Transmission ((201) 836-5334) Lexmain Realty Ventures LLC 118'_ Sussex Road Teaneck, New Jersey 07666 Attention: Samuel Kirschenhaum Re: $3,550,000 Loan (the "Loan") assumed by Lexmain Realty Ventures LLC, a. Delaware limited liability company (`Borrower") held by Lexington K Main L.P., a Delaware limited partnership ("Lender' NOTICE OF EVENTS OF DEFAULT Dear Mr. Kirsclienbaunt: Reference is made to the following: A. The Loan is evidenced by, among other things, that certain Fixed Rate Note ("Original Note") held by Lender, as the assignee (by intervening assignments) of JP Morgan Chase Bank ("Original Lender"), dated December 21, 2001, made in the original principal amount of $3,550,000.00 by Lexington Kingston Main L.P. ("Original Borrower"), as assumed by Borrower under and pursuant to, and as amended under and pursuant to, that certain Assumption Agreement dated as of December 23, 2010 to be effective January 11, 2011, made by and among Lender, Borrower, Original Borrower, Samuel Kirsehenbaum ("Kirschenbaum") and Benjamin Rubin ("Rubin," and Rubin and Kirschenbaum, each individually and together collectively, "Guarantor") and Lepercq Corporate Income Fund L.P. ("Original Guarantor"), and recorded as histrument Number 201102212 in the office of the Recorder of Deeds, Cumberland County, Pennsylvania ("Assumption eement"). The Original Note as assigned to Lender and as so assumed and amended under and pursuant to the Assumption Agreement, the The Loan is secured by, among other things, that certain Fee and Leasehold Mortgage and Security Agreement dated as of December 21, 2001, made by Original Borrower and Original Guarantor in favor of Original Lender and recorded in Mortgage Book 1744, Page 178 in the Official Records of Cumberland County, Pennsylvania, as assigned (by intervening assignments) by Original Lender to Lender, and as amended by, and as assumed by Borrower tinder and pursuant to, the Assumption Agreement (as so assigned, amended and assumed, the "Security Instrument'), Capitalized terms used but not defined in this notice letter have the respective meanings provided in the Security Iustrument. 11111.1 1975064-2 Lexmain Realty Ventures LLC March 13, 2012 Page 2 B. Boi-rower and Lender are parties to that certain Cash Management Agreement dated as of January 11, 2011 (the "Cash Management Agreement") in connection with the Loan. C. Under that certain Guaranty executed as of January 11, 2011 by Guarantor in favor of Lender ("Guarant '), Guarantor is jointly and several liable for (i) certain obligations of Borrower under the Assumption Agreement, the Assumed Loan Documents (including, without, limitation, the Note and Security Instrument) and the New Loan Documents (including, without limitation, the Cash Management Agreement and the Guaranty) (the Assumption Agreement, the , Asswned Loan ]documents and the New Loan Documents, collectively, the "Loan Documents") and (ii) under certain circumstances specified in the Guaranty, the unpaid balance of the Debt. The terms "Assumed Loan Documents" and "New Loan Documents" have the respective meanings set forth in the Assumption Agreement. Events of Default Borrower has failed to make the scheduled, monthly debt service payments, including required escrow deposits (each a "Defaulted Payment"), that were due and payable to Lender on February 1, 2012 (the "February Payment") and March 1, 2012 (the "March Pement") pursuant to Section I (b) of the Note and to the Assumption Agreement, Under Section 9,1(a) of" the Security histruinent, if any monthly debt service payment is not paid prior to the seventh (7th) calendar day after the same is due, then such failure shall constitute an immediate Event of Default without notice. Each of Borrower's failure to make the February Payment prior to February 8, 2012 and the March Payment prior to March 8, 2012 is an Event of Default (each such Event of Default, a "P.;,43ment Event of Default'). Under Section 4 of the Note, upon the occurrence of each Payment Event of Default, Lender became entitled to a late payment fee equal to five percent (5%) of the amount of the underlying Defaulted Payment, which late payment fee is due and payable upon demand. Lender hereby demands that Borrower immediately pay to Lender late payment fees in the amount of five; percent (5) of each Defaulted Payment (collectively, the "Late Fees"), In addition to the Late Fees, pursuant to Section 9.2 of the Security Instrument, upon the occurrence of any Event of Default, the interest rate payable upon the outstanding principal amount of the Debt immediately increases to the Default Rate. Therefore, interest has been accruing upon the outstanding principal amount of the Debt at the Default Rate since December 8, 1401, 1, and continues to accrue at such rate. Lexmain Realty Ventures LLC March 13, 2012 Page 3 Demand for Payment of Defaulted Amounts Lender demands that Borrower immediately pay to Lender: (i) each and all of the Defaulted Payments, (ii) each and all of the Late Fees, and (iii) all Default Rate interest accrued through the date that the amounts in clauses (i) and (ii) hereof are paid, fthts and Remedies. As a result of the Payment Defaults, Lender may at any time exercise any or all of its rights and remedies provided in the Loan Documents or at law or in equity, which remedies may include, without limitation, Lender exercising its rights under Section 3.3 of the Cash Management Agreement, accelerating the Debt, commencing foreclosure proceedings upon the Security Instrument, having a receiver for the Property appointed, and pursuing any claims that Lender may have against Guarantor under or pursuant to the Guaranty. Lender expressly reserves the right at any time and without ftuther notice to Borrower or Guarantor, to exercise any and all of its rights and remedies under the Loan Documents, at law or in equity, all as Lender may determine in its sole and absolute discretion, and nothing in this letter shall he construed to grant to Borrower or any Guarantor any cure right or period or right to any further notice not expressly required under the Loan Documents, at law or in equity. To the extent Borrower's or Guarantor's obligations have been discharged, dismissed, or are subject to an automatic stay of a bankruptcy order under Title 11 of the United States Code, this notice is for compliance and information purposes only, and does not constitute a demand for payment or any attempt to collect any such obligation. This notice is given pursuant to 11 U.S.C, Section 362(b)11, if applicable. In addition, all Lender's claims, demands and accruals with respect to the Loan Documents, whenever made, and whether for principal, interest or otherwise, are intended to comply in all respects, both independently and collectively, with all applicable usury laws, and are accordingly limited so that all applicable usury laws are not violated. Nothing in this letter is intended to or shall be construed to waive any existing or future defaults or Events of Default by the Borrower under any of the Loan Documents or is intended or shall be construed to be a reinstatement of the Loan or to waive any rights or remedies of Lender with respect to any past, existing or future defaults or Events of Default, regardless of whether such defaults or Events of Default or such rights or remedies are described in this letter or not, and all of such defaults, Events of Default, rights and remedies are hereby expressly preserved and reserved, In addition, this letter shall not be construed as an acknowledgment or agreement by Lender that any notice of or demand with respect to any default or Event of Default or the exercise of any right or remedy of Lender with respect thereto is required under the Loan Documents and this letter shall not be deerned to impose or create any such requirement. Finally, nothing in this letter shall obligate Lender to take or refrain from taking any particular course of action, constitute an election of remedies or shall operate to waive any of Lender' rights or remedies under, or any obligations of Borrower or, to the extent thereof, of Guarantor under, the Loan Documents, at law or in equity. Lexmain Realty Ventures LLC. March 13, 2012 Page 4 Very truly yours, LEXINGTON K MAIN L.P. By: Lexington Kingston Main LLC, its general partner By: Lepercq Corporate Income Fund LR, a Delaware limited partnership By: Lex GP-1 Trust, a Delaware statutory trust, its general partner B J Name: Josep -Bon ntre Title: Vice President cc via Fed Ex and Facsimile: Samuel Kirschenbaurn 1181 Sussex Road Teaneck, NJ 07666 Facsimile No,: 201-836-5334 Benjamin Rubin 200 East 901h Street New York, NY 10128 Facsimile No, 212-736-6363 Seyfarth Shaw LLP 560 Mission Street San Francisco, California 94105 Attention: Lawrence J. Moss, Esq. Fax (312) 460-7636 Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603-5577 Attention; Joel D. Rubin, Esq. Facsimile No.: (312) 460-7636 INVOICE Lexington K Main LP c/o Lexington Realty Trust One Penn Plaza, Suite #4015 New York, NY 10119-4015 Property: 34 E. Main St. - Silver Springs Loan Inception hate: 1/11/2011 Loan Maturity date: 1/1/2013 Wan 4: 212000 Interest Rate_ 7.78% Payments made YTD: Princlpal $7,315.11 Interest $19,569.02 Bank fee $55.98 Reserves Information: Escrow replacement $356,208.00 Escrow TI & LC $307,872.00 Escrow tax & Insurance $0,02 YTO escrow Insurance disbursement $22,672, 53 Payment Due pate 8/1/2012 Loan Principal Balance $2,913,675-69 Current Princlpal Payment Due $7,364.12 Current Interest Payment Due $19,520.01 Current Escrow Contributions Due $13,090.00 Current Bank Fees/legal fees Due $5596 Previous Outstanding Balances $301,539.58 Previous Late Fees $13,076.38 Previous Legal fees $2,810,00 Default interest on prior month $12,140,32 Late Fees on prior month $2,60-/.62 Total amount currently due To: LEXMAIN REALTY VENTURES, L,P, 1181 Sussex Road Teanec<, New Jersey 07666 Attention: Samuel Klrschenbaum Fax: (201) 836.5334 Samkeskrealtvmamt corn e amin.b.rubineamail.com ACCOUNT ACTIVITY Actuel/360 Days Escrow Date Description Days Principal Interest ContribWans Bank fees/legal fees 0811/2012 Current Principal Payment Due $7,364.12 08/1/2012 Current Interest Payment Due{ 07/01/2012.07/31/2012) 31 $19,520.01 U811/2012 Monthly Escrow Contribution - Ongoing Replacement Reserve $3,434.90 0811/2012 Monthly Escrow Contributions - TI & LC Reserve $2,906.00 08/1/2D32 Monthly Escrow Contributions - Tex & Insurance Reserve $6,750.•)0 08/1/2012 Bank Service Charges $55.98 Total rartdve owaun a ore s„alar to sx rer. pr rner3r. PLEASE WIRE PAYMENT TO : RBS Citizens National Association ABA# 241070417 ror the account of, Lexington K Main LP Credit Account if 4516844973 Notr rnwrauma payment @ $2,691.03 Was dkburstd thrv Tax & l0surance escrow axou0t In 07/2012 & wVo receNed LD $2,691.03 tram barimer. Note:InOtance payment@$5,190.03was dibursed thm Tax&inamm-ascrow ac-itin 06/2012&wIa wcerv d $5,390.03 from borrower. Note:W-stance 04yment@$2.819.17 was disbursedthin Lx&Insurance escrow "count In 05/2012A w'var awed@$1,260.17rrom borrawer. Note: In-m* payment @ SS,061.89 Was disbursed thru Tax & Insurance escrow auount M 04/2011. Notc rnsvo nce payment @ $2,567.89 was disbursed thw fix & insurance ascrow account in 03/2017. Notr; to+ma nce payrr.W iF $4,347.52 was disbursed thru Tax & I nwrarxo escrow account In 02/2012. KLEHR I HARRISON i HARVEY BRANZBURGLLP Anthony P. Tabasso Direct Dian (215) 569-4397 atabasso q)kehr. com September 20, 2012 VIA FEDERAL EXPRESS AND FACSIMILE (201) 836-5334 Lex>nain Realty Ventures, LLC 1181 Sussex Road Teaneck, NJ 07666 Attention: Samuel Kirschenbaum RE: Fixed Rate Note, dated December 21, 2001, in the original principal amount of $3,550,000.00 (the "Original Note") and secured by the Fee and Leasehold Mortgage and Security Agreement, dated December 21, 2001, ("Mortgage"), both assumed by Lexmain Realty Ventures, LLC (`Borrower") and held by Lexington K Main, LT. ("Lender") pursuant to the Assumption Agreement, dated December 23, 2010 and effective: January 11, 2011 ("Assumption Agreement"), which Assumption Agreement amended the Original Note (the Original Note as so amended the "Note") NOTICE OF EVENTS OF DEFAULT, ACCELERATION AND DEMAND FOR PAYMENT Dear Mr. Kirschenbaum: This firm is legal counsel to Lender, assignee (by intervening assignments) of JP Morgan Chase Bank N.A., with respect to Borrower's obligations to Lender pursuant to the above referenced Note, Mortgage and Assumption Agreement, as well as the Cash Management Agreement, dated January 11, 2011, by and between Borrower and Lender, the Guaranty, dated as of January 11, 2011 (the "Guaranty"), executed and delivered by Samuel Kirschenbaum and Benjamin Rubin (individually and collectively, "Guarantor"), the Escrow Agreement for Reserves and Impounds dated as of December 21, 2001 ("Reserves Agreement") and all other documents executed and delivered in connection with all of the same (collectively, the "Loan Documents"). Capitalized terms used but not defined in this notice have the respective meanings provided in the Mortgage. PHIL1 2308779-41635 MARKET STREET PHILADELPHIA PA 19103 1 215 568 6060 1 f 215 568 6603 klehccom PENNSYLVANIA I NEW JERSFY DELAWARE KLEHR i HARRISON i HARVEY o BRANZBURG,. Lexmain Realty Ventures, LLC September 20, 2012 Page 2 EVENTS OF DEFAULT Reference is made to that certain Notice of Events of Default by Lender to you of March 13, 2012 ("March 13, 2012 Notice"), None of the payments demanded to be made by the March 13, 2012 Notice have been made and each of the Events of Default referred to in such notice (the "Noticed Payment Defaults") is continuing. Not only has Borrower failed to make the payments necessary to cure the Noticed Payment Defaults, but since the March 13, 2012 Notice, Borrower has failed to make both the scheduled monthly constant principal and interest payments and the required monthly escrow and reserve deposits, that were due and payable to Lender on each of April 1, 2012, May 1, 2012, June 1, 2012, July 1, 2012, August 1, 2012 and September 1, 2012. Each failure by Borrower to make the required monthly debt service payment within seven (7) calendar days after its due date (e.g., by the 8`h day of the month when due) constitutes an additional Event of Default (collectively, "Further Payment Defaults"). Lender acknowledges that: (i) between April 26, 2012 and September 17, 2012, Borrower paid to Lender $19,797.21 to be applied towards Insurance Premiums, and (ii) to Lender's belief, Borrower has paid or caused to be paid all installments of Cumberland County/Silver Spring Township and Cumberland Valley School District Taxes that would be delinquent as of the date of this letter had the same not been paid. Neither Lender's acceptance of such funds paid on account of Insurance Premiums nor any payment by or on behalf of Borrower of such Taxes satisfies or constitutes or results in a waiver of Borrower's obligations under the Loan Documents for monthly deposits into the Tax and Insurance Funds (as defined in the Reserves Agreement). Under Section 4 of the Note, upon the occurrence of each payment Event of Default, Lender became entitled to late payment fees equal to five percent (5%) of the amounts of the defaulted payments, which late payment fees are due and payable upon demand. Lender demanded payment of these late fees with respect to the payments underlying the Noticed Payment Defaults in its March 13, 2012 Notice and hereby demands that, in addition, Borrower immediately pay to Lender late payment fees in the amount of five percent (5) of each payment underlying the Further Payment Defaults. In addition to all such late fees, pursuant to Section 9.2 of the Mortgage, upon the occurrence of any Event of Default, the interest rate payable upon the outstanding principal amount of the Debt immediately increases to the Default Rate. Therefore, interest has been accruing upon the outstanding principal amount of the Debt at the Default Rate since February 8, 2012, and continues to accrue at such rate. Pursuant to Section 10.1 of the Mortgage and other provisions of the Loan Documents, as a result of the above noticed Events of Default, Lender is entitled and intends to exercise all or any one or more of its rights, powers, privileges and other remedies available to Lender against Borrower under the Mortgage and other Loan Documents, at law and in PENNY'>VANIA i NEWJERSFY i C-"AWARE KLEHR I HARRISON I HARVEY i BRANZBURG<<l Lexmain Realty Ventures, LLC September 20, 2012 Page 3 equity, in addition to the imposition of the late fees and Default Rate interest: set forth above. ACCELERATION AND DEMAND FOR PAYMENT As a result of the various, material existing Events of Default, including, without limitation, the Noticed Payment Defaults and the Further Payment Defaults, the Loan is hereby accelerated and the Debt is hereby declared to be and is now due and payable in full. Lender demands that Borrower immediately pay to Lender the full amount of the Debt, including, without limitation, the outstanding principal balance of $2,913,675.69, all accrued, but unpaid interest thereon, including, without limitation, interest at the Default Rate, all late fees, and all costs and expenses incurred by Lender and to be paid or reimbursed by Borrower under the Loan Documents, including, without limitation, Lender's reasonable legal fees incurred in connection with the Debt. Please contact Lara Johnson of the Lender at (502) 893-7026 for payoff figures and instructions. If the Debt is not paid in full immediately, Lender intends to pursue some or all of its other remedies. MATTERS CONCERNING PERSONAL RECOURSE LIABILITY We remind you that, pursuant to Section 1.2(f) of the Guaranty, Guarantor is responsible for any costs and expenses incurred by Lender (including, without limitation, its reasonable attorneys' fees) in connection with the Debt or its enforcement not paid or reimbursed by Borrower. Our reference to these Guarantor obligations shall not be construed in any way to limit any other obligations of Guarantor under the Guaranty, including, without limitation, the obligations of Guarantor for the entire unpaid balance of the Debt in the case of a breach or default under Sections 43 (including, without limitation, Section 4.3(s)) or 8.2 of the Mortgage. The foregoing is without modification or waiver of any of Lender's rights and remedies under the Loan Documents, at law or in equity, and Lender expressly reserves the right to exercise such rights and remedies at its sole and exclusive discretion and without any further notice to you whatsoever. Nothing in this notice shall be construed to grant Borrower or the Guarantor any right to any further notice not expressly required under the Loan Documents or construed to waive any existing or future defaults by Borrower under the Loan Documents. Likewise, nothing in this notice is intended or shall be construed to permit a reinstatement of the loan or to waive any rights or remedies of Lender with respect to any past, existing or future defaults, regardless of whether such defaults, rights or remedies are described in this notice, and all such default, rights and remedies are hereby expressly preserved and reserved. Nothing in this notice shall obligate Lender to take or refrain from or delay taking any particular action, constitute an election of remedies or shall operate to waive any of Lender's rights or remedies under, or any obligations of Borrower or the Guarantor, under the Loan Documents. Finally, PENNSYLVANIA i NEW JERSEY 1 DELAWARE KLEHR I HARRISON I HARVEY i BRANZBURG._, Lexmain Realty Ventures, LLC September 20, 2012 Page 4 this notice shall not be construed as an acknowledgement or agreement by Lender that any notice or demand with respect to any default or the exercise of any right or remedy of Lender is required under the Loan Documents and this notice shall not be deemed to impose or create any such requirement. V ry my yours, ?. Anthony P. Tabasso cc: Samuel Kirschenbatun Benjamin Rubin Lawrence J. Moss Esq. Joel D. Rubin, Esq. Lara Johnson PENNSYLVANIA i NE\N JEP.SFY i DELAWARE KLEHR HARRISON HARVEY BRANZBURG LLP By: Anthony P. Tabasso, Esquire/Scott P. Shectman, Esquire I.D. Nos.: 80851/92276 1835 Market Street, Suite 1400 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFF (215) 569-2700 LEXINGTON K MAIN, L.P. c/o Lexington Realty Trust One Penn Plaza, Suite 4015 New York, NY 10119, Plaintiff, V. LEXMAIN REALTY VENTURES, LLC 1 181 Sussex Road Teaneck, NJ 07666, CUMBERLAND COUNTY:; COURT OF COMMON ME?AS'_; CIVIL ACTION NO.. Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearances of Anthony P. Tabasso and Scott P. Shectman on behalf of the plaintiff in the above-captioned matter. KLEHR HARRISON HARVEY BRANZBURG LLP DatedI .-' '2012 By: ?•; Anthony P. Tabasso, Esquire Scott P. Shectman, Esquire 1835 Market Street, Suite 1400 Philadelphia, PA 19103 Attorneys for Plaintiff PHIL 1 2450876v.1 r ~' 1'.<,. KLEHR HARRISON HARVEY BRANZBURG LLP ~`; ~ : R. ; , By: Anthony P. Tabasso, Esquire/Scott P. Shectman, Esquire ~ .. n ~' I ,.i t i j r v I.D. Nos.: 80851/92276 183 5 Market Street, Suite 1400 ~ ; .. ~ ~::, ; ~ ~ C ~3 ~ s`d ~ ,~, Philadelphia, PA 19103 ATTORNEYS FOI~'~~,i~~~1'~"~~~1`; (215) 569-2700 LEXINGTON K MAIN, L.P., Plaintiff, v. LEXMAIN REALTY VENTURES, LLC, Defendant. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION NO.: 12-6547 PRAECIPE TO SETTLE, DISCONTINUE AND END ACTION TO THE PROTHONOTARY: Kindly mark the above-captioned action as settled, discontinued and ended, with each party to bear their own costs. Dated: November 19, 2012 By: KLEHR HARRISON HARVEY BRANZBURG LLP i Anthony P. Tabasso, Esquire Scott P. Shectman, Esquire 183 5 Market Street, Suite 1400 Philadelphia, PA 19103 Attorneys for Plaint PHIL 1 2490554v.1 KLEHR HARRISON HARVEY BRANZBURG LLP By: Anthony P. Tabasso, Esquire/Scott P. Shectman, Esquire I.D. Nos.: 80851/92276 183 5 Market Street, Suite 1400 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFF (215) 569-2700 LEXINGTON K MAIN, L.P., CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. CIVIL ACTION LEXMAIN REALTY VENTURES, :LLC, NO.: 12-6547 Defendant. CERTIFICATE OF SERVICE I, Scott P. Shectman, hereby certify that on November 19, 2012, a true and correct copy of the Praecipe to Settle, Discontinue and End Action has been served upon the following via U. S. First Class Mail, postage prepaid: LEXMAIN REALTY VENTURES, LLC 1181 Sussex Road Teaneck, NJ 07666 ~\ Scott P. Shectman PHILI 249~554v.1